Non-Competition. During the Employment Period and for an additional period of one (1) year following the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not to, directly or indirectly, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensation.
Appears in 7 contracts
Sources: Executive Employment Agreement (Amreit), Executive Employment Agreement (Amreit), Executive Employment Agreement (Amreit)
Non-Competition. During Executive hereby acknowledges and agrees that, during the Employment Period course of employment, in addition to Executive’s access to Confidential Information, Executive has become, and for an additional period will become, familiar with and involved in all aspects of the business and operations of the Bank Entities. Executive hereby covenants and agrees that during the Term until the earlier to occur of the date one (1) year following after the termination of his employment by the Company for Cause ( as described in Section 5a above) Termination Date, or the voluntary termination of employment by the Executive (as described in Section 5c above) Expiration Date (the “Noncompetition TermRestricted Period”), Executive agrees will not toat any time (except for the Bank Entities), directly or indirectly, either through in any form of ownership or capacity (whether as an individuala proprietor, owner, agent, officer, director, officershareholder, organizer, partner, principal, agentmanager, member, employee, employercontractor, adviserconsultant or otherwise):
(a) provide any advice, consultantassistance or services of the kind or nature which he provided to any of the Bank Entities or relating to business activities of the type engaged in by any of the Bank Entities within the preceding two years, shareholderto any Person who owns or operates a Competitive Business or to any Person that is attempting to initiate or acquire a Competitive Business (in either case, partnera “Competitor”) if (i) such Competitor operates, member or is planning to operate, any office, branch or other facility (in any other individual case, a “Branch”) that is (or representative capacity whatsoeveris proposed to be) located within a fifty (50) mile radius of the Bank’s headquarters or any Branch of the Bank Entities and (ii) such Branch competes or will compete with the products or services offered or planned to be offered by the Bank Entities during the Restricted Period; or
(b) sell or solicit sales of Competitive Products to Persons within such 50 mile radius, either for his or assist any Competitor in such sales activities. Notwithstanding any provision hereof to the contrary, this Section 8.5 does not restrict Executive’s right to (i) own benefit or for the benefit securities of any person Entity that files periodic reports with the Securities and Exchange Commission under Section 13 or entity, without the prior written consent 15(d) of the Company Securities Exchange Act of 1934, as amended; provided that Executive’s total ownership constitutes less than two percent (which consent may be withheld in its sole discretion), engage in any manner in 2%) of the Business outstanding securities of such company and that such ownership does not does not violate: (as defined belowA) in the metropolitan areas Code of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas Conduct or any other metropolitan area in policy of the United States where Bank, including any policy related to inside information; (B) any applicable securities law; or (C) any applicable standstill or other similar contractual obligation of the Company owns or leases more than $10 million in gross asset value of assets Bank. The parties have also entered into that certain Non-Compete Agreement as of August 1, 2014 (the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the CompanyNon-Compete”). Notwithstanding the foregoingabove, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect 8.5 shall not apply in the legitimate business interests of event the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him (a) continued employment with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that the Bank upon a Change in Control and then (b) voluntarily resigns from the Company and the Bank effective in the event a court should decline thirteenth or fourteenth month following such Change in Control and (c) no Change in Control Payment had been paid to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition Executive in connection with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, Change in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationControl.
Appears in 7 contracts
Sources: Employment Agreement (Eagle Bancorp Inc), Employment Agreement (Eagle Bancorp Inc), Employment Agreement (Eagle Bancorp Inc)
Non-Competition. During Executive hereby acknowledges and agrees that, during the Employment Period course of employment, in addition to Executive’s access to Confidential Information, Executive has become, and for an additional period will become, familiar with and involved in all aspects of the business and operations of the Bank Entities. Executive hereby covenants and agrees that during the Term until the later to occur of the date one (1) year following after the termination of his employment by the Company for Cause ( as described in Section 5a above) Termination Date, or the voluntary termination of employment by the Executive (as described in Section 5c above) Expiration Date (the “Noncompetition TermRestricted Period”), Executive agrees will not toat any time (except for the Bank Entities), directly or indirectly, either through in any form of ownership or capacity (whether as an individuala proprietor, owner, agent, officer, director, officershareholder, organizer, partner, principal, agentmanager, member, employee, employercontractor, adviserconsultant or otherwise):
(a) provide any advice, consultantassistance or services of the kind or nature which he provided to any of the Bank Entities or relating to business activities of the type engaged in by any of the Bank Entities within the preceding two years, shareholderto any Person who owns or operates a Competitive Business or to any Person that is attempting to initiate or acquire a Competitive Business (in either case, partnera “Competitor”) if (i) such Competitor operates, member or is planning to operate, any office, branch or other facility (in any other individual case, a “Branch”) that is (or representative capacity whatsoeveris proposed to be) located within a fifty (50) mile radius of the Bank’s headquarters or any Branch of the Bank Entities and (ii) such Branch competes or will compete with the products or services offered or planned to be offered by the Bank Entities during the Restricted Period; or
(b) sell or solicit sales of Competitive Products to Persons within such 50 mile radius, either for his or assist any Competitor in such sales activities. Notwithstanding any provision hereof to the contrary, this Section 8.5 does not restrict Executive’s right to (i) own benefit or for the benefit securities of any person Entity that files periodic reports with the Securities and Exchange Commission under Section 13 or entity, without the prior written consent 15(d) of the Company Securities Exchange Act of 1934, as amended; provided that Executive’s total ownership constitutes less than two percent (which consent may be withheld in its sole discretion), engage in any manner in 2%) of the Business outstanding securities of such company and that such ownership does not does not violate: (as defined belowA) in the metropolitan areas Code of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas Conduct or any other metropolitan area in policy of the United States where Bank, including any policy related to inside information; (B) any applicable securities law; or (C) any applicable standstill or other similar contractual obligation of the Company owns or leases more than $10 million in gross asset value of assets Bank. The parties have also entered into that certain Non-Compete Agreement as of even date herewith (the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationNon-Compete”).
Appears in 7 contracts
Sources: Employment Agreement (Eagle Bancorp Inc), Employment Agreement (Eagle Bancorp Inc), Employment Agreement (Eagle Bancorp Inc)
Non-Competition. During Employee acknowledges that his services to be rendered hereunder are of a special and unusual character which have a unique value to Company, the Employment Period loss of which cannot adequately be compensated by damages in an action at law. In view of the unique value to Company of the services of Employee for which Company has contracted hereunder, and because of the confidential information to be obtained by or disclosed to Employee, and as a material inducement to Company to enter into this Agreement, and to pay to Employee the compensation referred to in Section 1.4 hereof, Employee covenants and agrees that during Employee's employment hereunder and for an additional a period of one (1) year following after he ceases to be employed by Company, Employee shall not (a) directly or indirectly, solicit business from, divert business from, or attempt to convert to other methods of using the termination same or similar products or services as provided by Company, any client, account or location of Company with which Employee has had any contact as a result of his employment by the Company for Cause ( as described hereunder; (b) engage in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not tocarry on, directly or indirectly, either through for himself, as a member of a partnership, or as a stockholder (except as limited partner or stockholder of less than one percent (1%) of the issued and outstanding limited partnership interests or stock of a publicly held partnership or corporation whose gross assets exceed $l,000,000), as an investor, lender, guarantor, landlord, manager, officer, or director of any form of ownership person, partnership, corporation, or other entity (other than the Company or its subsidiaries), or as an individual, director, officer, principalemployee, agent, employeeassociate, employerbroker, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit consultant of any person person, partnership, corporation, or entityother entity (other than the Company or its subsidiaries), without the prior written consent any business that competes with any operations of the Company within an one hundred (which consent may be withheld 100)-mile radius of any geographic area where Company is actually engaged in its sole discretion)business, engage in or maintains sales or service representatives or employees; or (c) directly or indirectly, solicit for employment or employ any manner in the Business (as defined below) in the metropolitan areas employee of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoingEmployee may elect, Executive shall not be deemed by providing written notice to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by to shorten the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions term of this Section 9non-compete to six (6) months, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9provided, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event that event, the Company's obligation to pay severance pay to the Employee pursuant to Section 1.5.2 shall the provisions of this Section 9 be deemed reduced to be more restrictive an amount equal to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person six (including himself6) or entity, whether or not for compensationmonths base pay.
Appears in 6 contracts
Sources: Employment Agreement (Encore Medical Corp), Employment Agreement (Encore Medical Corp), Employment Agreement (Encore Medical Corp)
Non-Competition. During the Period of Employment Period hereunder, and in the event the Employee’s employment is terminated pursuant to subparagraphs 10.2 or 10.3 hereof, then for an additional the later of (a) one year thereafter or (b) the period of one (1) year following during which compensation or benefits are being provided pursuant to this Agreement after its termination, the termination of his employment by Employee will not directly for himself or herself or any third party, become engaged in any business or activity which is directly in competition with any services or financial products sold by, or any business or activity engaged in by, the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not to, directly or indirectly, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and ExecutiveBank, including, without limitation, those involvingany business or activity engaged in by any federally or state chartered bank, employmentsavings bank, compensationsavings and loan association, trust company and/or credit union, and/or any services or financial products sold by such entities, including, without limitation, the taking and Confidential Informationaccepting of deposits, the provision of trust services, the making of loans and/or the extension of credit, brokering loans and/or leases and in order to protect the Company’s Confidential Information provision of insurance and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by investment services, within a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests 25 mile radius of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked office or modified by a writing signed by both Executive and the Chief Executive Officer facility of the Company, the Bank or any of their Affiliates. This provision shall not restrict the Employee from owning or investing in publicly traded securities of financial institutions, so long as approved by his or her aggregate holdings in any financial institution do not exceed ten percent (10%) of the Boardoutstanding capital stock of such institution. During the Period of Employment hereunder, which specifically states an intent to revoke or modify this provision. Executive acknowledges that and for a period of two years thereafter no matter the reason of termination, the Employee will not solicit any person who was a customer of the Company would not employ him or provide him the Bank during the period of the Employee’s employment hereunder, or solicit potential customers who are or were identified through leads developed during the course of employment with access the Company or the Bank, or otherwise divert or attempt to its Confidential Information but for his covenants divert any existing business of the Company or promises contained in this Sectionthe Bank within any area of 100 miles of any office or facility of the Company, the Bank or any of their Affiliates. The Company and Executive agree and stipulate that Employee will not, either during the agreements and covenants not to compete contained Period of Employment hereunder or for a period of two years thereafter directly for himself or any third party, solicit, induce, recruit or cause another person in this Section 9 hereof are fair and reasonable in light of all the employment of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9Bank, the Company and Executive agree or any of their Affiliates to terminate his or her employment for the purposes of joining, associating, or becoming employed with any business or activity which is in competition with any services or financial products sold, or any business or activity engaged in, by Company or the Bank. The Employee understands that in the event of a court should decline to enforce any terms violation of any provision of this Agreement, the Company or the Bank shall have the right to seek injunctive relief, in addition to any other existing rights provided in this Agreement or by operation of law, without the requirement of posting bond. The remedies provided in this paragraph shall be in addition to any legal or equitable remedies existing at law or provided for in any other agreement between the Employee, the Bank or the Company, and shall not be construed as a limitation upon, or as an alternative or in lieu of, any such remedies. If any provisions of this Section 9, that this Section 9 paragraph shall be deemed determined by a court of competent jurisdiction to be modified unenforceable in part by reason of it being too great a period of time or reformed to restrict Executive’s competition with the Company to the maximum extentcovering too great a geographical area, it shall be in full force and effect as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions that period of this Section 9 be deemed time or geographical area determined to be more restrictive to Executive than those contained herein. Executive agrees that during reasonable by the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationcourt.
Appears in 5 contracts
Sources: Employment Agreement (Susquehanna Bancshares Inc), Employment Agreement (Susquehanna Bancshares Inc), Employment Agreement (Susquehanna Bancshares Inc)
Non-Competition. During By and in consideration of the Company’s entering into this Employment Period Agreement and for an additional period of one (1) year following the termination of his employment payments to be made and benefits to be provided by the Company for Cause ( as described hereunder, and in Section 5a above) or further consideration of the voluntary termination Executive’s exposure to the Confidential Information of employment by the Company and its affiliates, the Executive agrees that the Executive shall not, during the Executive’s employment with the Company (as described in Section 5c abovewhether during the Term or thereafter) and for a period of twelve (12) months thereafter (the “Noncompetition TermRestriction Period”), Executive agrees not to, directly or indirectly, either through any form of ownership own, manage, operate, join, control, be employed by, or as an individualparticipate in the ownership, directormanagement, officeroperation or control of, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage connected in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executivewith, including, without limitation, those involvingholding any position as a stockholder, employmentdirector, compensationofficer, and Confidential Informationconsultant, and independent contractor, employee, partner, or investor in, any Restricted Enterprise (as defined below); provided, that in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the no event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% one percent (1%) or less of the outstanding equity interests securities of any public entityclass of any issuer whose securities are registered under the Securities Exchange Act of 1934, as amended, standing alone, be prohibited by this Section 4.2, so long as the Executive does not have, or exercise, any rights to manage or operate the business of such issuer other than rights as a stockholder thereof. Executive hereby acknowledges For purposes of this paragraph, “Restricted Enterprise” shall mean any Person that is actively engaged in any business which is either (i) in competition with the geographic boundaries, scope of prohibited activities and the time duration business of the provisions Company or any of this Section 9 are reasonable and are no broader than are necessary to protect its Subsidiaries conducted during the legitimate business interests preceding twelve (12) months (or following the Executive’s termination of employment, the twelve (12) months preceding the date of termination of the Executive’s employment with the Company) or (ii) proposed to be conducted by the Company or any of its Subsidiaries in the Company’s business plan as in effect at that time (or following the Executive’s termination of employment, the business plan as in effect as of the date of termination of the Executive’s employment with the Company); provided, that (x) with respect to any Person that is actively engaged in the refinery business, a Restricted Enterprise shall only include such a Person that operates or markets in any geographic area in which the Company or any of its Subsidiaries operates or markets with respect to its refinery business and (y) with respect to any Person that is actively engaged in the fertilizer business, a Restricted Enterprise shall only include such a Person that operates or markets in any geographic area in which the Company or any of its Subsidiaries operates or markets with respect to its fertilizer business. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and During the Chief Executive Officer Restriction Period, upon request of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company of the Executive’s then-current employment status. For the avoidance of doubt, a Restricted Enterprise shall not include any Person or division thereof that is engaged in writing the business of any employment, work supplying (but not refining) crude oil or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationnatural gas.
Appears in 5 contracts
Sources: Employment Agreement (CVR Energy Inc), Employment Agreement (CVR Energy Inc), Employment Agreement (CVR Energy Inc)
Non-Competition. During (a) Unless the Employment Period and obligation is waived or limited by Ceridian in accordance with subsection (b) of this Section 6.02, Executive agrees that for an additional a period of one (1) year two years following the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”)for any reason, Executive agrees will not to, directly or indirectly, either through any form of ownership alone or as an individuala partner, officer, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member shareholder or in employee of any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person firm or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage in any manner commercial activity in the Business (competition with any part of Ceridian's business as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets conducted as of the date of such termination of employment or with any part of Ceridian's contemplated business with respect to which Executive has Confidential Information as governed by Article V of this Agreement or as of the date of terminationAgreement. For purposes of this Section 9subsection (a), “Business” means "shareholder" shall not include beneficial ownership of less than five percent (5%) of the acquisitioncombined voting power of all issued and outstanding voting securities of a publicly held corporation whose stock is traded on a major stock exchange. Also for purposes of this subsection (a), development"Ceridian's business" shall include business conducted by Ceridian or its affiliates and any partnership or joint venture in which Ceridian or its affiliates is a partner or joint venturer; provided that, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained "affiliate" as used in this Section 9 are being given sentence shall not include any corporation in consideration which Ceridian has ownership of less than fifteen percent (15%) of the numerous mutual promises and agreements contained in this Agreement between voting stock.
(b) At its sole option Ceridian may, by written notice to Executive within 30 days after the Company and effective date of termination of Executive, including, without limitation, those involving, 's employment, compensationwaive or limit the time and/or geographic area in which Executive cannot engage in competitive activity.
(c) During the term of the non-competition obligation, and Confidential Informationprior to accepting employment with, and in order or agreeing to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage provide consulting services to, any firm which would occur offers products or services in the event such fields of electronics or information is provided to or used by a competitor of the Company. Notwithstanding the foregoingprocessing, Executive shall not be deemed give 30 days prior written notice to have violated this Section 9 solely by reason of his passive ownership of 10% Ceridian. Such written notice shall describe the proposed employment or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities consulting services and the firm to which they will be rendered. Ceridian's failure to respond or object to such notice shall not in any way constitute acquiescence or waiver of Ceridian's rights under this Article VI.
(d) During any period of non-competition pursuant to this Article VI Ceridian shall pay Executive an amount equal to the usual rate of Executive's Base Salary in effect at the time duration of termination. There shall be credited against Ceridian's obligation to make such payments any other payments made by Ceridian to Executive pursuant to Article IV of this Agreement. In the provisions event that Ceridian elects, pursuant to subsection (b) of this Section 9 are reasonable and are no broader than are necessary 6.02, to protect the legitimate business interests waive all or any portion of the Company. This noncompetition provision can only non-competition obligation, no payment shall be revoked or modified required by a writing signed by both Executive and Ceridian with respect to the Chief Executive Officer portion of the Company, as approved by the Board, non-competition period which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationhas been waived.
Appears in 5 contracts
Sources: Executive Employment Agreement (Ceridian Corp), Executive Employment Agreement (Ceridian Corp), Executive Employment Agreement (Ceridian Corp)
Non-Competition. During (a) While employed hereunder and (i) if the Employment Executive's employment is terminated and the Executive is entitled to receive compensation and benefits under either Section 4.5, during the Salary Continuation Period and or (ii) if the Executives employment is otherwise terminated, for an additional a period of one (1) year following thereafter (such period being the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by "Restricted Period"), the Executive (as described in Section 5c above) (shall not, unless the “Noncompetition Term”), Executive agrees not to, directly or indirectly, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without receives the prior written consent of the Board of Directors, own a material interest in, manage, operate, join, control, lend money or render financial or other assistance to or participate in or be connected with, as an officer, employee, partner, stockholder, consultant or otherwise, (A) any Person (x) that competes with the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ investing or San Antonio, Texas or any other metropolitan area consulting with small and medium sized businesses in the United States where with regard to change of control transactions in which the transaction utilizes employee stock ownership plans, or (y) that provides or proposes to provide services to or owns an investment in or proposes to make an investment in any Person that is a client of the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement Termination Date or as to which the Company has outstanding loans or in which the Company then has investments (including warrants or options), or (B) any potential customer of the date of termination. For purposes of this Section 9Company with which the Company has discussed a client, “Business” means loan or investment relationship within 12 months prior to, as applicable, the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration end of the numerous mutual promises Executive's employment or the Termination Date.
(b) The Executive has carefully read and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of considered the provisions of this Section 9 5.2 and, having done so, agrees that the restrictions set forth in this Section 5.2 (including the Restricted Period, scope of activity to be restrained and the geographical scope) are fair and reasonable and are no broader than are necessary to protect reasonably required for the legitimate business protection of the interests of the Company, its officers, directors, employees, creditors and shareholders. This noncompetition provision can only be revoked or modified by a writing signed by both The Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges understands that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete restrictions contained in this Section 9 hereof are fair 5.2 may limit the Executive's ability to engage in a business similar to the Company's business, but acknowledges that the Executive will receive sufficiently high remuneration and reasonable in light other benefits from the Company hereunder to justify such restrictions.
(c) During the Restricted Period, the Executive shall not, whether for the Executive's own account or for the account of all any other Person (excluding the Company), intentionally (i) solicit, endeavor to entice or induce any employee of the facts and circumstances Company to terminate the Executive's employment with the Company or accept employment with anyone else or (ii) interfere in a similar manner with the business of the relationship between Executive and Company.
(d) In the Company; provided however, Executive and the Company are aware event that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions any provision of this Section 95.2 relating to the Restricted Period or the areas of restriction shall be declared by a court of competent jurisdiction to exceed the maximum time period or areas such court deems reasonable and enforceable, the Company Restricted Period or areas of restriction deemed reasonable and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which enforceable by the court shall find enforceable; provided however, in no event shall become and thereafter be the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationmaximum time period and/or areas.
Appears in 5 contracts
Sources: Employment Agreement (American Capital Strategies LTD), Employment Agreement (American Capital Strategies LTD), Employment Agreement (American Capital Strategies LTD)
Non-Competition. (a) The Company shall provide Employee access to the Confidential Information for use only during the Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill of the Company Group, and in consideration thereof and in consideration of the access to Confidential Information, has voluntarily agreed to the covenants set forth in this Section. Employee further agrees and acknowledges that the limitations and restrictions set forth herein, including but not limited to geographical and temporal restrictions on certain competitive activities, are reasonable and not oppressive and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information and substantial and legitimate business interests and goodwill.
(b) During the Employment Period and for an additional a period of one two (12) year years (the “Restricted Period”) following the termination of his employment by the Company Employment Period for Cause ( as described in Section 5a above) any reason, Employee shall not, for whatever reason and with or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not to, directly or indirectlywithout cause, either through individually or in partnership or jointly or in conjunction with any form of ownership other Person or Persons as an individual, director, officer, principal, agent, employee, employershareholder (other than holding equity interests listed on a United States stock exchange or automated quotation system that do not exceed five percent (5%) of the outstanding shares so listed), adviserowner, consultantinvestor, shareholder, partner, member partner or in any other individual or representative capacity manner whatsoever, either for his own benefit directly or for indirectly, engage in or compete with the benefit of Business anywhere in the world.
(c) During the Restricted Period, Employee shall not (A) knowingly induce or attempt to induce any person or entity, without the prior written consent other Person known to Employee to be a customer of the Company or its affiliates (which consent may be withheld in each, a “Customer”) to cease doing any business with the Company or its sole discretion), engage in any manner affiliates anywhere in the world or (B) solicit business involving the Business from, or provide services related to the Business to, any Customer.
(as defined belowd) in During the metropolitan areas Restricted Period, Employee shall not solicit the employment of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where individual who is an employee of the Company owns or leases more than $10 million in gross asset value its affiliates, except that Employee shall not be precluded from soliciting the employment of, or hiring, any such individual (i) whose employment with the Company or one of assets as its affiliates has been terminated before entering into employment discussions with such Seller, (ii) who initiates discussions with Employee regarding employment opportunities with Employee or (iii) responds to a general advertisement or other similarly broad form of the date of this Agreement or as of the date of termination. solicitation for employees.
(e) For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of following terms shall have the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensation.following meanings:
Appears in 5 contracts
Sources: Employment Agreement (USA Compression Partners, LP), Employment Agreement (USA Compression Partners, LP), Employment Agreement (USA Compression Partners, LP)
Non-Competition. During The Practice hereby recognizes, acknowledges, and avers that Retail Business Manager will incur substantial costs in providing the Employment Period equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Retail Business Management Agreement and that in the process of providing services under this Retail Business Management Agreement, the Practice will be privy to financial and Confidential Information, to which the Practice would not otherwise be exposed. The Parties also recognize that the services to be provided by Retail Business Manager will be feasible only if the Practice operates an active practice to which the Professionals associated with the Practice devote their full time and attention. The Practice agrees, acknowledges, and avers that the non-competition covenants described hereunder are necessary for the protection of Retail Business Manager, and that Retail Business Manager would not have entered into this Retail Business Management Agreement without the following covenants.
(a) Except as specifically agreed to by Retail Business Manager in writing, the Practice covenants and agrees that during the Term of this Retail Business Management Agreement and for an additional a period of one (1) year following from the termination of his employment date this Retail Business Management Agreement is terminated, other than if terminated by the Company Practice for Cause ( as described cause, or expires the Practice shall not directly or indirectly own (excluding ownership of less than one percent (1%) of the equity of any publicly traded entity and excluding ownership of the common stock of Retail Business Manager), manage, operate, control, contract with, lend funds to, lend its name to, maintain any interest whatsoever in, or be employed by, any enterprise (i) having to do with the provision, distribution, promotion, or advertising of any type of management or administrative services or products to third parties in Section 5a abovecompetition with Retail Business Manager, within a 10 mile radius of any Dispensary of the Practice; and/or (ii) offering any type of service(s) or product(s) to third parties substantially similar to those offered by Retail Business Manager to the voluntary termination of employment by the Executive (as described Practice in Section 5c above) (the “Noncompetition Term”), Executive agrees not to, directly or indirectly, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit competition with Retail Business Manager within a 10 mile radius of any person or entity, without the prior written consent Dispensary of the Company Practice; and/or (which consent may be withheld iii) providing Optical Services in its sole discretion), engage in competition with Retail Manager within a ten (10) mile radius of any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as Dispensary of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationPractice.
Appears in 4 contracts
Sources: Retail Business Management Agreement (Eyemasters Inc), Retail Business Management Agreement (Eyemasters Inc), Retail Business Management Agreement (Eye Care Centers of America Inc)
Non-Competition. (a) During the Employment Period and for an additional period one year after the date of one (1) year following the any such termination of his employment by employment, the Company for Cause ( as described in Section 5a above) or Employee agrees that, without the voluntary termination prior express written consent of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”)Company, Executive agrees not tohe shall not, directly or indirectly, either through any form of ownership for his own benefit or as an individual, director, officer, principal, agent, employee, employer, adviser, consultantowner, shareholder, partner, member consultant, (or in any other individual representative capacity) for any other person, firm, partnership, corporation or representative capacity whatsoeverother entity (other than the Company), either for his own benefit (i) engage in the discovery, research and/or development of therapeutic, diagnostic or for prophylactic products which work through the benefit same biological mechanisms as products which at the time of such termination are under active clinical or pre-clinical development or have been pre-clinically or clinically developed by the Company and which the Company has not abandoned (“Related Programs”) or (ii) solicit or hire (or direct another to solicit or hire) the services of any person employee of the Company or entity, without attempt to induce any such employee or any consultant to the prior written consent Company to leave the employ of the Company (except when such acts are performed in good faith by the Employee on behalf of the Company). Notwithstanding the above, this provision shall not be deemed to prevent or prohibit Employee from being employed during such one year period by another entity in a managerial role where Employee has overall responsibility for managing (or assisting in the management of) a research and development portfolio which consent includes one or more Related Programs, provided that Employee does not violate the terms of Section 6 hereof and does not during such one year term actively advise or direct the discovery, research or development efforts of such other entity in the Related Program(s). During the Employment Period, the Employee shall not own more than 2% of the outstanding common stock of any corporation. The provisions of this Section 5 shall not be deemed to reduce in any way any other fiduciary, contractual or other legal obligation the Employee may have to the Company, including without limitation any obligation which may arise by virtue of any corporation law, securities law, patent or intellectual property law or right, the common law, other agreements with the Company or otherwise. For purposes of Section 5 of this Agreement, the term “solicit” shall mean any communication of any kind whatsoever, regardless of by whom initiated, inviting, encouraging, or requesting any person or entity to take or refrain from taking any action.
(b) The Employee agrees to comply with the terms set forth in the Proprietary Information and Inventions Agreement previously entered into by the Company and Employee.
(c) If at any time within twelve (12) months after the date on which the Employee exercises a Company stock option or stock appreciation right, or on which Company restricted stock vests, or on which income is realized by the Employee in connection with any other Company equity-based award (each of which events is a “Realization Event”), the Employee breaches any provision of Section 5(a) or 5(b) of the Agreement in more than a minor, deminimus or trivial manner that causes or is likely it cause, more than deminimus financial or reputational harm to the Company (and, if such breach is susceptible to cure, the Employee does not cure such breach and harm within ten (10) days after the Employee’s receipt of written notice of such breach of the Company which specifies in reasonable detail the facts and circumstances claimed to be the basis for such breach), then (i) the Employee shall forfeit all of Employee’s unexercised (including unvested) Neurogen Corporation stock options and restricted stock and (ii) any gain realized within the twelve (12) months prior to such breach from the exercise of any Company stock options or the vesting of any Company restricted stock or other equity-based awards by the Employee from the Realization Event shall be paid by the Employee to the Company upon written notice from the Company within ninety (90) days of such notice (such payments may be withheld made in its sole discretionincrements over such period). Such gain shall be determined after reduction for any taxes paid (or, engage if such gain is determined before such taxes are paid, owing, provided that such taxes are actually paid in a timely manner) by the Employee which are attributable to such gain as of the date of the Realization Event, and without regard to any manner subsequent change in the Business Fair Market Value (as defined below) in of a share of Company common stock; provided that any federal or state income tax benefit actually realized by the metropolitan areas Employee as a result of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where making payments to the Company owns or leases more than $10 million in gross asset value under this Section 5(c) (relating to any of assets as the next ten (10) tax year periods) shall also be paid to the Company within fifteen (15) days of such realization. Such gain shall be paid by the Employee delivering to the Company shares of Company Common Stock with a Fair Market Value on the date of this Agreement delivery equal to the amount of such gain. To the extent permitted by applicable law, the Company shall have the right to offset such gain against any amounts otherwise owed to the Employee by the Company (whether as wages, vacation pay, or as of the date of terminationpursuant to any benefit plan or other compensatory arrangement). For purposes of this Section 95(c), the “BusinessFair Market Value” means of a share of Company Common Stock on any date shall be (i) the acquisitionclosing sale price per share of Company Common Stock during normal trading hours on the national securities exchange on which the Company Common Stock is principally traded for such date or the last preceding date on which there was a sale of such Company Common Stock on such exchange or (ii) if the shares of Company Common Stock are then traded on the NASDAQ Stock Market or any other over-the-counter market, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration the average of the numerous mutual promises closing bid and agreements contained asked prices for the shares of Company Common Stock during normal trading hours in this Agreement between such over-the-counter market for such date or the last preceding date on which there was a sale of such Company Common Stock in such market, or (iii) if the shares of Company Common Stock are not then listed on a national securities exchange or traded in an over-the-counter market, such value as the Compensation Committee, in its sole discretion, shall reasonably determine. In the event that the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order seeks to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of enforce the provisions of this Section 9 are reasonable 5(c), and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved such enforcement is contested by the BoardEmployee, which specifically states an intent to revoke or modify this provision. Executive acknowledges and it is finally determined that the Company would Employee is not employ him or provide him with access subject to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 95(c), then the Company shall (i) reimburse the Employee for reasonable attorneys’ fees incurred by the Employee in connection with such contest; and Executive agree (ii) pay to the Employee an additional amount equal to one (1) times the amount in clause (i); provided that in such payment under this clause (ii) shall not exceed $250,000.
(d) Any termination of the event a court should decline Employee’s employment or of this Agreement shall have no effect on the continuing operation of this Section 5.
(e) The Employee acknowledges and agrees that the Company will have no adequate remedy at law, and could be irreparably harmed, if the Employee breaches or threatens to enforce any terms of breach any of the provisions of this Section 9, 5. The Employee agrees that the Company shall be entitled to equitable and/or injunctive relief to prevent any breach or threatened breach of this Section 9 shall be deemed 5, and to be modified specific performance of each of the terms hereof in addition to any other legal or reformed to restrict Executive’s competition with equitable remedies that the Company may have. The Employee further agrees that Employee shall not, in any equity proceeding relating to the maximum extentenforcement of the terms of this Section 5, as to time, geography raise the defense that the Company has an adequate remedy at law.
(f) The terms and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed 5 are intended to be separate and divisible provisions and if, for any reason, any one or more restrictive of them is held to Executive than those contained hereinbe invalid or unenforceable, neither the validity nor the enforceability of any other provision of this Agreement shall thereby be affected. Executive agrees The parties hereto acknowledge that during the Noncompetition Termpotential restrictions on the Employee’s future employment imposed by this Section 5 are reasonable in both duration and geographic scope and in all other respects. If for any reason any court of competent jurisdiction shall find any provisions of this Section 5 unreasonable in duration or geographic scope or otherwise, he shall immediately notify the Employee and the Company agree that the restrictions and prohibitions contained herein shall be effective to the fullest extent allowed under applicable law in writing such jurisdiction.
(g) The parties acknowledge that this Agreement would not have been entered into and the benefits described in Section 4 of any employment, work or business he undertakes with or on behalf this Agreement would not have been promised in the absence of any person (including himself) or entity, whether or not for compensationthe Employee’s promises under this Section 5.
Appears in 4 contracts
Sources: Employment Agreement (Neurogen Corp), Employment Agreement (Neurogen Corp), Employment Agreement (Neurogen Corp)
Non-Competition. During (a) Upon any termination of Executive’s employment hereunder, other than a termination (whether voluntary or involuntary) following a Change in Control), as a result of which the Employment Period and Company is paying Executive benefits under Section 6 of this Agreement, Executive agrees not to compete with the Bank and/or the Company for an additional a period of one (1) year following such termination within twenty-five (25) miles of any existing branch of the termination Bank or any subsidiary of his employment the Company or within twenty-five (25) miles of any office for which the Bank, the Company or a Bank subsidiary of the Company has filed an application for regulatory approval to establish an office, determined as of the effective date of such termination, except as agreed to pursuant to a resolution duly adopted by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Board. Executive (as described in Section 5c above) (the “Noncompetition Term”)agrees that during such period and within said area, cities, towns and counties, Executive agrees shall not towork for or advise, consult or otherwise serve with, directly or indirectly, either through any form entity whose business materially competes with the depository, lending or other business activities of ownership or as an individualthe Bank and/or the Company. The parties hereto, directorrecognizing that irreparable injury will result to the Bank and/or the Company, officerits business and property in the event of Executive’s breach of this Subsection 12(a) agree that in the event of any such breach by Executive, principalthe Bank and/or the Company will be entitled, agent, employee, employer, adviser, consultant, shareholder, partner, member or in addition to any other individual remedies and damages available, to an injunction to restrain the violation hereof by Executive, Executive’s partners, agents, servants, employers, employees and all persons acting for or representative capacity whatsoeverwith Executive. Executive represents and admits that Executive’s experience and capabilities are such that Executive can obtain employment in a business engaged in other lines and/or of a different nature than the Bank and/or the Company, either and that the enforcement of a remedy by way of injunction will not prevent Executive from earning a livelihood. Nothing herein will be construed as prohibiting the Bank and/or the Company from pursuing any other remedies available to the Bank and/or the Company for his own benefit such breach or threatened breach, including the recovery of damages from Executive.
(b) Executive recognizes and acknowledges that the knowledge of the business activities and plans for the benefit of any person or entity, without the prior written consent business activities of the Company (which consent and affiliates thereof, as it may be withheld in its sole discretion)exist from time to time, engage in any manner in the Business (as defined below) in the metropolitan areas of Houstonis a valuable, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross special and unique asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Executive will not, during or after the term of his employment, disclose any knowledge of the past, present, planned or considered business activities of the Company or affiliates thereof to any person, firm, corporation, or other entity for any reason or purpose whatsoever (except for such disclosure as may be required to be provided to any federal banking agency with jurisdiction over the Company or Executive). Notwithstanding the foregoing, Executive shall may disclose any knowledge of banking, financial and/or economic principles, concepts or ideas which are not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less and exclusively derived from the business plans and activities of the outstanding equity interests Company, and Executive may disclose any information regarding the Bank or the Company which is otherwise publicly available. In the event of any public entity. a breach or threatened breach by Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and will be entitled to an injunction restraining Executive agree that from disclosing, in whole or in part, the event a court should decline to enforce any terms of any knowledge of the provisions past, present, planned or considered business activities of this Section 9the Company or affiliates thereof, that this Section 9 shall be deemed or from rendering any services to any person, firm, corporation, other entity to whom such knowledge, in whole or in part, has been disclosed or is threatened to be modified or reformed to restrict Executive’s competition with disclosed. Nothing herein will be construed as prohibiting the Company from pursuing any other remedies available to the maximum extentCompany for such breach or threatened breach, as to time, geography and business scope, which including the court shall find enforceable; provided however, in no event shall the provisions recovery of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationdamages from Executive.
Appears in 4 contracts
Sources: Employment Agreement (Investors Bancorp Inc), Employment Agreement (Investors Bancorp Inc), Employment Agreement (New Investors Bancorp, Inc.)
Non-Competition. During Employee acknowledges that his services to be rendered hereunder are of a special and unusual character which have a unique value to Company, the Employment Period loss of which cannot adequately be compensated by damages in an action at law. In view of the unique value to Company of the services of Employee for which Company has contracted hereunder, and because of the confidential information to be obtained by or disclosed to Employee, and as a material inducement to Company to enter into this Agreement, and to pay to Employee the compensation referred to in Section 1.4 hereof, Employee covenants and agrees that during Employee's employment hereunder and for an additional a period of one (1) year following after he ceases to be employed by Company, Employee shall not (a) directly or indirectly, solicit business from, divert business from, or attempt to convert to other methods of using the termination same or similar products or services as provided by Company, any client, account or location of Company with which Employee has had any contact as a result of his employment by the Company for Cause ( as described hereunder; (b) engage in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not tocarry on, directly or indirectly, either through for himself, as a member of a partnership, or as a stockholder (except as limited partner or stockholder of less than one percent (1%) of the issued and outstanding limited partnership interests or stock of a publicly held partnership or corporation whose gross assets exceed $l,000,000), as an investor, lender, guarantor, landlord, manager, officer, or director of any form of ownership person, partnership, corporation, or other entity (other than the Company or its subsidiaries), or as an individual, director, officer, principalemployee, agent, employeeassociate, employerbroker, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit consultant of any person person, partnership, corporation, or entityother entity (other than the Company or its subsidiaries), without the prior written consent any business (or segment of a business if such business operates in more than one segment of the Company (which consent may be withheld in its sole discretion), engage in orthopedic industry) that competes with any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer operations of the Company, as approved they exist at the time of Employee's termination, within an one hundred (100)-mile radius of any geographic area where Company is actually engaged in business, or maintains sales or service representatives or employees; or (c) directly or indirectly, solicit for employment or employ any employee of Company. In the event this Agreement is terminated by the BoardCompany without cause, which specifically states an intent Employee may elect, by providing written notice to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and to shorten the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions term of this Section 9non-compete to six (6) months, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9provided, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event that event, the Company's obligation to pay severance pay to the Employee pursuant to Section 1.5.2 shall the provisions of this Section 9 be deemed reduced to be more restrictive an amount equal to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person six (including himself6) or entity, whether or not for compensationmonths base pay.
Appears in 4 contracts
Sources: Employment Agreement (Encore Medical Corp), Employment Agreement (Encore Medical Corp), Employment Agreement (Encore Medical Corp)
Non-Competition. During Employee agrees that during the Employment Period period of Employee's employment with the Company and for an additional a period of one (1) year following 18 months from the termination last payment of his employment compensation to Employee by the Company for Cause ( as described Company, Employee shall not engage in Section 5a above) or the voluntary termination of employment by the Executive (as described participate in Section 5c above) (the “Noncompetition Term”), Executive agrees not toany business activity that competes, directly or indirectly, either through any form with the businesses of ownership the Company, or as an individualits subsidiaries or affiliates, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for provided that Employee shall not be precluded from competing with the benefit of any person or entity, without the prior written consent business of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (event of a termination of Employee's employment as defined below) in the metropolitan areas a result of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where a material breach by the Company owns or leases more than $10 million in gross asset value of assets as of the date provisions of this Agreement or as of in the date of terminationevent that Employee's employment is terminated by the Company other than for cause. For purposes of this Section 98, “Business” means Employee shall be deemed to "compete, directly or indirectly" with the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor businesses of the Company, or its subsidiaries or affiliates if Employee is or becomes engaged, otherwise than at the request of the Company, as an officer, director or employee of, or is or becomes associated in a management or ownership, consultant or agent, capacity with, any corporation, partnership or other enterprise or venture the business of which includes wholesale, private label web hosting and email services in Canada or the United States, during the 18 month period immediately preceding Employee's termination. Notwithstanding the foregoing, Executive Employee shall not be deemed to have violated this Section 9 solely by reason "compete, directly or indirectly" with the businesses of his passive ownership the Company, or its subsidiaries or affiliates if he becomes associated in a management or ownership, consultant or agent, capacity with, any corporation, partnership or other enterprise or venture, the business of 10which is competitive to the Company, prior to the date that the businesses of the Company becomes competitive with the business of such corporation, partnership or other enterprise or venture. Notwithstanding anything to the contrary contained herein Employee may, without being deemed to compete, directly or indirectly, with the businesses of the Company or its subsidiaries or affiliates own not more than 5% or less of any class of the outstanding equity interests securities of any public entitysuch corporation listed on a national securities exchange or traded in the over-the-counter market. Executive hereby acknowledges that It is the geographic boundaries, scope of prohibited activities desire and the time duration intent of the parties that the provisions of this Section 9 are reasonable 8 shall be enforceable to the fullest extent permissible under the laws and are no broader than are necessary to protect the legitimate business interests public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular portion of the Companythis Section 8 is adjudicated unenforceable in any jurisdiction, such adjudication shall apply only in that particular jurisdiction in which such adjudication is made. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges The parties recognize that the Company would not employ him or provide him with access to its Confidential Information but will have no adequate remedy at law for his the breach by Employee of the covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained provided in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however8, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Thereforeand, in furtherance of, and not in derogation the event of the provisions of this Section 9such breach, the Company and Executive Employee hereby agree that in the event Company will be entitled to an injunction, a court should decline decree of specific performance, mandamus or other appropriate remedy to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationsuch covenants.
Appears in 4 contracts
Sources: Employment Agreement (Hostopia.com Inc.), Employment Agreement (Hostopia.com Inc.), Employment Agreement (Hostopia.com Inc.)
Non-Competition. During (a) Upon any termination of Executive’s employment hereunder, other than a termination, (whether by resignation, voluntary or involuntary) in connection with a Change in Control, as a result of which the Employment Period and Bank is paying Executive benefits under Section 6 of this Agreement, Executive agrees not to compete with the Bank and/or the Company for an additional a period of one (1) year following such termination within twenty-five (25) miles of any existing branch of the termination Bank or any subsidiary of his employment the Company or within twenty-five (25) miles of any office for which the Bank, the Company or a Bank subsidiary of the Company has filed an application for regulatory approval to establish an office, determined as of the effective date of such termination, except as agreed to pursuant to a resolution duly adopted by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Board. Executive (as described in Section 5c above) (the “Noncompetition Term”)agrees that during such period and within said area, cities, towns and counties, Executive agrees shall not towork for or advise, consult or otherwise serve with, directly or indirectly, either through any form of ownership entity whose business materially competes with the depository, lending or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent business activities of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing Bank and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information . The parties hereto, recognizing that irreparable injury will result to the Bank and/or the Company, its business and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur property in the event of Executive’s breach of this Subsection 11(a) agree that in the event of any such information breach by Executive, the Bank and/or the Company will be entitled, in addition to any other remedies and damages available, to an injunction to restrain the violation hereof by Executive, Executive’s partners, agents, servants, employers, employees and all persons acting for or with Executive. Executive represents and admits that Executive’s experience and capabilities are such that Executive can obtain employment in a business engaged in other lines and/or of a different nature than the Bank and/or the Company, and that the enforcement of a remedy by way of injunction will not prevent Executive from earning a livelihood. Nothing herein will be construed as prohibiting the Bank and/or the Company from pursuing any other remedies available to the Bank and/or the Company for such breach or threatened breach, including the recovery of damages from Executive.
(b) Executive recognizes and acknowledges that the knowledge of the business activities and plans for business activities of the Bank and affiliates thereof, as it may exist from time to time, is a valuable, special and unique asset of the business of the Bank. Executive will not, during or after the term of his employment, disclose any knowledge of the past, present, planned or considered business activities of the Bank or affiliates thereof to any person, firm, corporation, or other entity for any reason or purpose whatsoever (except for such disclosure as may be required to be provided to any federal banking agency with jurisdiction over the Bank or used by a competitor of the CompanyExecutive). Notwithstanding the foregoing, Executive shall may disclose any knowledge of banking, financial and/or economic principles, concepts or ideas which are not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less and exclusively derived from the business plans and activities of the outstanding equity interests Bank, and Executive may disclose any information regarding the Bank or the Company which is otherwise publicly available. In the event of any public entity. a breach or threatened breach by Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary Section, the Bank will be entitled to protect an injunction restraining Executive from disclosing, in whole or in part, the legitimate business interests knowledge of the Company. This noncompetition provision can only be revoked past, present, planned or modified by a writing signed by both Executive and the Chief Executive Officer considered business activities of the CompanyBank or affiliates thereof, as approved by the Boardor from rendering any services to any person, which specifically states an intent firm, corporation, other entity to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Thereforewhom such knowledge, in furtherance ofwhole or in part, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed has been disclosed or is threatened to be modified or reformed to restrict Executive’s competition with disclosed. Nothing herein will be construed as prohibiting the Company Bank from pursuing any other remedies available to the maximum extentBank for such breach or threatened breach, as to time, geography and business scope, which including the court shall find enforceable; provided however, in no event shall the provisions recovery of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationdamages from Executive.
Appears in 4 contracts
Sources: Employment Agreement (Colonial Bankshares Inc), Employment Agreement (Colonial Bankshares Inc), Employment Agreement (United Financial Bancorp Inc)
Non-Competition. During (a) Executive acknowledges and recognizes the highly competitive nature of the business of the Company and its affiliates and accordingly agrees that, in consideration of this Agreement, the rights hereunder, and any payments hereunder, from the date hereof until the earlier of (i) the last day of the Employment Term, (ii) the last day of any Severance Period and for (iii) two years following Executive's Date of Termination (the "Non- Compete Term"), Executive will not, subject to Section 3(c) hereof, directly or indirectly engage in the operation of any cable television system or any other line of business in place at the Systems as of the Date of Termination within one hundred miles of any geographic area where the Company or its affiliates operate a cable system as of the Date of Termination during the Non-Compete Term, whether such engagement is as an additional period officer, director, proprietor, employee, partner, investor (other than as a holder of one (less than 1) year following % of the termination outstanding capital stock of his employment a publicly traded corporation), consultant, advisor, agent, sales representative or other participant; provided, however, that, during the Non-Compete Term, Executive will not be prohibited from engaging in any activity in which Executive may engage while employed by the Company for Cause ( as described in Section 5a above) or pursuant to the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not to, directly or indirectly, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent terms of the Company (which consent may be withheld in its sole discretion), engage in Exclusivity Agreement. Notwithstanding any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date provision of this Agreement or as of to the date of termination. For purposes of this Section 9contrary, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or from and after any capital raising activities related thereto. breach by Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable 9(a), the Company shall cease to have any obligations to make payments to Executive under this Agreement, it being understood, however, that nothing contained in this Agreement shall in any manner affect the obligations of Holdings to Executive under the Holdings LLC Agreement or the rights of Executive under the MSCP Carry LLC Agreement and are no broader than are necessary to protect the legitimate business interests TWI Carry LLC Agreement.
(b) For a period of two years following the Date of Termination, Executive will not directly or indirectly induce any employee or client of the Company. This noncompetition provision can only be revoked Company or modified any of its affiliates to engage in any activity in which Executive is prohibited from engaging by Section 9(a) hereof or to terminate his or her client or employment relationship, as applicable, with the Company or any of its affiliates, and will not directly or indirectly solicit the performance of services for any person who is a writing signed by both customer or client or former customer or client of the Company or any of its affiliates unless such person shall have ceased to have been a customer or client of the Company or any of its affiliates for a period of at least six (6) months.
(c) It is expressly understood and agreed that although Executive and the Chief Executive Officer of Company consider the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete restrictions contained in this Section 9 hereof are fair and reasonable to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in light of all of the facts and circumstances of the relationship between Executive and the Company; provided howeverthis Agreement is an unenforceable restriction against Executive, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the Company and Executive agree that in the event a court should decline to enforce any terms enforceability of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those other restrictions contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensation.
Appears in 4 contracts
Sources: Employment Agreement (Renaissance Media Capital Corp), Employment Agreement (Renaissance Media Capital Corp), Employment Agreement (Renaissance Media Capital Corp)
Non-Competition. During (a) Unless the Employment Period and obligation is waived or limited by Ceridian in accordance with subsection (b) of this Section 6.02, Executive agrees that for an additional a period of one (1) year two years following the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive for any reason (as described in Section 5c above) (the “Noncompetition Term”"Non-Compete Period"), Executive agrees will not to, directly or indirectly, either through any form of ownership alone or as an individuala partner, officer, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member shareholder or in employee of any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person firm or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage in any manner commercial activity in the Business (competition with any part of Ceridian's business as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets conducted as of the date of this Agreement such termination of employment or as with any part of the date of terminationCeridian's contemplated business with respect to which Executive has Confidential Information. For purposes of this Section 9subsection (a), “Business” means "shareholder" shall not include beneficial ownership of less than five percent (5%) of the acquisitioncombined voting power of all issued and outstanding voting securities of a publicly held corporation whose stock is traded on a major stock exchange. Also for purposes of this subsection (a), development"Ceridian's business" shall include business conducted by Ceridian or its affiliates and any partnership or joint venture in which Ceridian or its affiliates is a partner or joint venturer; provided that, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained "affiliate" as used in this Section 9 are being given sentence shall not include any corporation in consideration which Ceridian has ownership of less than fifteen percent (15%) of the numerous mutual promises and agreements contained voting stock.
(b) At its sole option Ceridian may, by written notice to Executive at any time within the Non-Compete Period, waive or limit the time and/or geographic area in this Agreement between which Executive cannot engage in competitive activity.
(c) During the Company and ExecutiveNon-Compete Period, includingprior to accepting employment with or agreeing to provide consulting services to, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage any firm or entity which would occur in the event such information is provided to offers competitive products or used by a competitor of the Company. Notwithstanding the foregoingservices, Executive shall give 30 days prior written notice to Ceridian. Such written notice shall describe the firm and the employment or consulting services to be rendered to the firm or entity, and shall include a copy of the written offer of employment or engagement of consulting services. Ceridian's failure to respond or object to such notice shall not in any way constitute acquiescence or waiver of Ceridian's rights under this Article VI.
(d) In the event Executive has provided notice to Ceridian pursuant to subsection (c) of this Section 6.02 and has not accepted employment with or agreed to provide consulting services to, any firm or entity directly as a result of his or her non-competition obligation pursuant to this Section 6.02, Ceridian shall pay Executive an amount equal to the usual rate of Executive's Base Salary in effect at the time of termination on a regular payroll period basis until the end of the Non-Compete Period. There shall be credited against Ceridian's obligation to make such payments any other payments made by Ceridian to Executive pursuant to Article IV of this Agreement. In the event that Ceridian elects, pursuant to subsection (b) of this Section 6.02, to waive all or any portion of the non-competition obligation set forth in subsection (a) hereof, no payment shall be required by Ceridian with respect to the portion of the Non-Compete Period which has been waived.
(e) In the event Executive fails to provide notice to Ceridian pursuant to subsection (c) of this Section 6.02 and/or in anyway violates its non-competition obligation pursuant to Section 6.02, Ceridian may enforce all of its rights and remedies provided to it under this Agreement, in law and in equity, and Executive shall be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% expressly waived any rights he or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions she may have had to payments under subsection (d) of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensation6.02.
Appears in 3 contracts
Sources: Executive Employment Agreement (Ceridian Corp), Executive Employment Agreement (Ceridian Corp), Executive Employment Agreement (Ceridian Corp)
Non-Competition. During the Employment Period and (a) Except as otherwise provided in this Agreement, for an additional a period of one five (15) year following years after the termination Contribution Closing Date, the Contributor Parties shall not, and shall cause each of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not totheir respective Affiliates to not, directly or indirectly, either through (x) engage in, or acquire an equity interest in, or provide debt financing to any form of ownership or as an individualPerson who is engaged in, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Restricted Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where (the Company owns “Restricted Territory”), (y) request any past, present or leases more than $10 million in gross asset value of assets as future customers of the date Propane Group Entities within the Restricted Territory to curtail or cancel their business with Acquirer or any of its Affiliates (including the Propane Group Entities), or (z) except as required by Law, disclose to any Person the names of past or existing customers of the Propane Group Entities. Nothing in this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event definition of Restricted Business shall prohibit or in any way restrict any NRGY Entity from:
(i) acquiring or owning the Retained Units, the Retained Assets or otherwise entering into or exercising any rights of such information is provided NRGY Entity pursuant to the NRGY Support Agreement or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10acquiring or owning less than 5% or less of the outstanding voting power of any other publicly traded Person, including if such Person is engaged in a Restricted Business;
(ii) performing its obligations under the Transaction Agreements; or
(iii) acquiring the assets or capital stock or other equity interests of any public entity. Executive hereby acknowledges Person which is engaged in a Restricted Business (“Acquired Company”) if, in its last full fiscal year prior to such acquisition, the consolidated revenues of such Acquired Company from the Restricted Business in the Restricted Territory was less than twenty-five percent (25%) of the aggregate consolidated revenues of such Acquired Company; provided, however, that if an NRGY Entity acquires an Acquired Company with consolidated revenues from a Restricted Business in the Restricted Territory greater than ten percent (10%) of the aggregate consolidated revenues of such Acquired Company, such NRGY Entity shall (A) provide Acquirer the exclusive opportunity, for a period of forty five (45) days following the closing of such acquisition, to negotiate the purchase of such portion of such business that is engaged in the Restricted Business and (B) if such NRGY Entity and Acquirer do not enter into an agreement with respect to Acquirer’s purchase of such portion of such business within such forty five (45)-day period, divest such portion of such entire business within nine (9) months of the acquisition.
(b) The Contributor Parties agree that the duration and geographic boundaries, scope of prohibited activities the non-competition provision set forth in this Section 5.11 are reasonable. In the event that any court determines that the duration or geographic scope of the restrictions set forth in this Section 5.11, or both, is unreasonable and that such provision is to that extent unenforceable, the Parties agree that the provision shall remain in full force and effect for the greatest time duration period and in the greatest area that would not render it unenforceable. The Parties intend that this non-competition provision shall be deemed to be a series of separate covenants, one for each and every county of each and every state of the United States of America. Additionally, because of the difficulty of measuring economic losses to Acquirer as a result of a breach of this Section 5.11, and because of the immediate and irreparable damage that could be caused to Acquirer for which it may not have any other adequate remedy, the Contributor Parties agree that Acquirer may seek to enforce the provisions of this Section 9 are reasonable 5.11 by seeking to obtain injunctions, restraining orders and are no broader than are necessary other equitable actions pursuant to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensation9.4.
Appears in 3 contracts
Sources: Contribution Agreement (Suburban Propane Partners Lp), Contribution Agreement (Inergy L P), Contribution Agreement (Suburban Propane Partners Lp)
Non-Competition. During 10.1 Until the Employment Period Date of Termination, Executive agrees not to enter into competitive endeavors and not to undertake any commercial activity which is contrary to the best interests of the Corporation or its affiliates, including becoming an employee, owner (except for passive investments of not more than three percent of the outstanding shares of, or any other equity interest in, any company or entity listed or traded on a national securities exchange or in an over-the-counter securities market), officer, agent or director of (a) any firm or person engaged in the operation of a business engaged in the acquisition of industrial businesses or (b) any firm or person which either directly competes with a line or lines of business of the Corporation accounting for five percent (5%) or more of the Corporation's gross revenues or earnings before taxes or derives five percent (5%) or more of such firm's or person's gross revenues or earnings before taxes from a line or lines of business which directly compete with the Corporation. Notwithstanding any provision of this Agreement to the contrary, Executive agrees that his breach of the provisions of this Section 10.1 shall permit the Corporation to terminate Executive's employment for Cause in accordance with Section 5.l(b) hereof.
10.2 After the Date of Termination and for an additional a period of one (1) year following time equal in years to the termination multiple of his employment annual salary received by the Company for Cause ( as described in Section 5a aboveExecutive pursuant to either Sections 6.6(b) or the voluntary termination of employment by the Executive (as described in Section 5c above6.7(b) (the “Noncompetition Term”"Non-Competition Period"), Executive agrees not toto become an employee, directly owner (except for passive investments of not more than three percent of the outstanding shares of, or indirectlyany other equity interest in, either through any form of ownership company or as entity listed or traded on a national securities exchange or in an individual, directorover-the-counter securities market), officer, principalagent or director of any firm or person which directly and substantially competes with a business of the Corporation accounting for five percent (5%) or more of the Corporation's gross revenues or earnings before taxes. During the Non-Competition Period, agentExecutive will be available to answer questions and provide advice to the Corporation; provided, employeehowever, employer, adviser, consultant, shareholder, partner, member or in that such requirement shall not unreasonably interfere with any other individual of Executive's activities which Executive is then pursuing and which are not otherwise prohibited by this Section 10. Also, during the Non-Competition Period, Executive will retain in confidence any and all confidential information known to him concerning the Corporation and its business and shall not use or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, disclose such information without the prior written consent approval of the Company (which consent Corporation except to the extent such information becomes public or as may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. required by law.
10.3 Executive understands acknowledges and agrees that his covenants contained damages for breach of the covenant not to compete in this Section 9 are being given 10 will be difficult to determine and will not afford a full and adequate remedy, and therefore Executive agrees that the Corporation, in consideration addition to seeking actual damages pursuant to the procedures set forth in Section 13 below, may seek specific enforcement of the numerous mutual promises and agreements contained covenant not to compete in this Agreement between the Company and Executiveany court of competent jurisdiction, including, without limitation, those involvingby the issuance of a temporary or permanent injunction, employment, compensation, and Confidential Information, and in order to protect without the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood necessity of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entitybond. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of Corporation agree that the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants covenant not to compete contained in are reasonable. However, should any court or arbitrator determine that any provision of this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements covenant not to compete. Thereforecompete is unreasonable, either in furtherance ofperiod of time, and not in derogation of the provisions of this Section 9geographical area, or otherwise, the Company and Executive parties agree that in the event a court this covenant not to compete should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company interpreted and enforced to the maximum extent, as to time, geography and business scope, extent which the such court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationarbitrator deems reasonable.
Appears in 3 contracts
Sources: Employment Agreement (Coltec Industries Inc), Employment Agreement (Coltec Industries Inc), Employment Agreement (Coltec Industries Inc)
Non-Competition. During (a) Upon any termination of Executive’s employment hereunder, other than a termination, (whether voluntary or involuntary) in connection with a Change in Control, as a result of which the Employment Period and Bank is paying Executive benefits under Section 6 of this Agreement, Executive agrees not to compete with the Bank and/or the Company for an additional a period of one (1) year following such termination within twenty-five (25) miles of any existing branch of the termination Bank or any subsidiary of his employment the Company or within twenty-five (25) miles of any office for which the Bank, the Company or a Bank subsidiary of the Company has filed an application for regulatory approval to establish an office, determined as of the effective date of such termination, except as agreed to pursuant to a resolution duly adopted by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Board. Executive (as described in Section 5c above) (the “Noncompetition Term”)agrees that during such period and within said area, cities, towns and counties, Executive agrees shall not towork for or advise, consult or otherwise serve with, directly or indirectly, either through any form of ownership entity whose business materially competes with the depository, lending or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent business activities of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing Bank and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information . The parties hereto, recognizing that irreparable injury will result to the Bank and/or the Company, its business and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur property in the event of Executive’s breach of this Subsection 11(a) agree that in the event of any such information breach by Executive, the Bank and/or the Company will be entitled, in addition to any other remedies and damages available, to an injunction to restrain the violation hereof by Executive, Executive’s partners, agents, servants, employers, employees and all persons acting for or with Executive. Executive represents and admits that Executive’s experience and capabilities are such that Executive can obtain employment in a business engaged in other lines and/or of a different nature than the Bank and/or the Company, and that the enforcement of a remedy by way of injunction will not prevent Executive from earning a livelihood. Nothing herein will be construed as prohibiting the Bank and/or the Company from pursuing any other remedies available to the Bank and/or the Company for such breach or threatened breach, including the recovery of damages from Executive.
(b) Executive recognizes and acknowledges that the knowledge of the business activities and plans for business activities of the Bank and affiliates thereof, as it may exist from time to time, is a valuable, special and unique asset of the business of the Bank. Executive will not, during or after the term of his/her employment, disclose any knowledge of the past, present, planned or considered business activities of the Bank or affiliates thereof to any person, firm, corporation, or other entity for any reason or purpose whatsoever (except for such disclosure as may be required to be provided to any federal banking agency with jurisdiction over the Bank or used by a competitor of the CompanyExecutive). Notwithstanding the foregoing, Executive shall may disclose any knowledge of banking, financial and/or economic principles, concepts or ideas which are not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less and exclusively derived from the business plans and activities of the outstanding equity interests Bank, and Executive may disclose any information regarding the Bank or the Company which is otherwise publicly available. In the event of any public entity. a breach or threatened breach by Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary Section, the Bank will be entitled to protect an injunction restraining Executive from disclosing, in whole or in part, the legitimate business interests knowledge of the Company. This noncompetition provision can only be revoked past, present, planned or modified by a writing signed by both Executive and the Chief Executive Officer considered business activities of the CompanyBank or affiliates thereof, as approved by the Boardor from rendering any services to any person, which specifically states an intent firm, corporation, other entity to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Thereforewhom such knowledge, in furtherance ofwhole or in part, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed has been disclosed or is threatened to be modified or reformed to restrict Executive’s competition with disclosed. Nothing herein will be construed as prohibiting the Company Bank from pursuing any other remedies available to the maximum extentBank for such breach or threatened breach, as to time, geography and business scope, which including the court shall find enforceable; provided however, in no event shall the provisions recovery of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationdamages from Executive.
Appears in 3 contracts
Sources: Employment Agreement (Kaiser Federal Financial Group, Inc.), Employment Agreement (Kaiser Federal Financial Group, Inc.), Employment Agreement (Kaiser Federal Financial Group, Inc.)
Non-Competition. (a) The Company shall provide Employee access to the Confidential Information for use only during the Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, in Employee’s unique and special capacity, with developing the goodwill of the Company Group, and in consideration thereof and in consideration of the access to Confidential Information, has voluntarily agreed to the covenants set forth in this Section. Employee further agrees and acknowledges that the limitations and restrictions set forth herein, including, but not limited to, geographical and temporal restrictions on certain competitive activities, are reasonable and not oppressive and are material and substantial parts of this Agreement intended and necessary to prevent unfair competition and to protect the Company Group’s Confidential Information and substantial and legitimate business interests and goodwill.
(b) During the Employment Period and for an additional a period of one two years (1the “Restricted Period”) year following the termination of his employment by the Company Employment Period for Cause ( as described in Section 5a above) any reason, Employee shall not, for whatever reason and with or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not to, directly or indirectlywithout cause, either through individually or in partnership or jointly or in conjunction with any form of ownership other Person or Persons as an individual, director, officer, principal, agent, employee, employershareholder (other than holding equity interests listed on a United States stock exchange or automated quotation system that do not exceed 5% of the outstanding shares so listed), adviserowner, consultantinvestor, shareholder, partner, member partner or in any other individual or representative capacity manner whatsoever, either for his own benefit directly or for indirectly, engage in or compete with the benefit of Business anywhere in the world.
(c) During the Restricted Period, Employee shall not (i) knowingly induce or attempt to induce any person or entity, without the prior written consent other Person known to Employee to be a customer of the Company or its affiliates (which consent may be withheld in each, a “Customer”) to cease doing any business with the Company or its sole discretion), engage in any manner affiliates anywhere in the world or (ii) solicit business involving the Business from, or provide services related to the Business to, any Customer.
(as defined belowd) in During the metropolitan areas Restricted Period, Employee shall not solicit the employment of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where individual who is an employee of the Company owns or leases more than $10 million in gross asset value its affiliates, except that Employee shall not be precluded from soliciting the employment of, or hiring, any such individual (i) whose employment with the Company or one of assets as its affiliates has been terminated before entering into employment discussions with such Seller, (ii) who initiates discussions with Employee regarding employment opportunities with Employee or (iii) responds to a general advertisement or other similarly broad form of the date of this Agreement or as of the date of termination. solicitation for employees.
(e) For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of following terms shall have the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensation.following meanings:
Appears in 3 contracts
Sources: Employment Agreement (USA Compression Partners, LP), Employment Agreement (USA Compression Partners, LP), Employment Agreement (USA Compression Partners, LP)
Non-Competition. During (a) Upon any termination of Executive's employment hereunder, other than a termination (whether voluntary or involuntary) following a Change in Control), as a result of which the Employment Period and Company is paying Executive benefits under Section 6 of this Agreement, Executive agrees not to compete with the Bank and/or the Company for an additional a period of one (1) year following such termination within twenty-five (25) miles of any existing branch of the termination Bank or any subsidiary of his employment the Company or within twenty-five (25) miles of any office for which the Bank, the Company or a Bank subsidiary of the Company has filed an application for regulatory approval to establish an office, determined as of the effective date of such termination, except as agreed to pursuant to a resolution duly adopted by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Board. Executive (as described in Section 5c above) (the “Noncompetition Term”)agrees that during such period and within said area, cities, towns and counties, Executive agrees shall not towork for or advise, consult or otherwise serve with, directly or indirectly, either through any form entity whose business materially competes with the depository, lending or other business activities of ownership or as an individualthe Bank and/or the Company. The parties hereto, directorrecognizing that irreparable injury will result to the Bank and/or the Company, officerits business and property in the event of Executive's breach of this Subsection 11(a) agree that in the event of any such breach by Executive, principalthe Bank and/or the Company will be entitled, agent, employee, employer, adviser, consultant, shareholder, partner, member or in addition to any other individual remedies and damages available, to an injunction to restrain the violation hereof by Executive, Executive's partners, agents, servants, employers, employees and all persons acting for or representative capacity whatsoeverwith Executive. Executive represents and admits that Executive's experience and capabilities are such that Executive can obtain employment in a business engaged in other lines and/or of a different nature than the Bank and/or the Company, either and that the enforcement of a remedy by way of injunction will not prevent Executive from earning a livelihood. Nothing herein will be construed as prohibiting the Bank and/or the Company from pursuing any other remedies available to the Bank and/or the Company for his own benefit such breach or threatened breach, including the recovery of damages from Executive.
(b) Executive recognizes and acknowledges that the knowledge of the business activities and plans for the benefit of any person or entity, without the prior written consent business activities of the Company (which consent and affiliates thereof, as it may be withheld in its sole discretion)exist from time to time, engage in any manner in the Business (as defined below) in the metropolitan areas of Houstonis a valuable, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross special and unique asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Executive will not, during or after the term of his employment, disclose any knowledge of the past, present, planned or considered business activities of the Company or affiliates thereof to any person, firm, corporation, or other entity for any reason or purpose whatsoever (except for such disclosure as may be required to be provided to any federal banking agency with jurisdiction over the Company or Executive). Notwithstanding the foregoing, Executive shall may disclose any knowledge of banking, financial and/or economic principles, concepts or ideas which are not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less and exclusively derived from the business plans and activities of the outstanding equity interests Company, and Executive may disclose any information regarding the Bank or the Company which is otherwise publicly available. In the event of any public entity. a breach or threatened breach by Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and will be entitled to an injunction restraining Executive agree that from disclosing, in whole or in part, the event a court should decline to enforce any terms of any knowledge of the provisions past, present, planned or considered business activities of this Section 9the Company or affiliates thereof, that this Section 9 shall be deemed or from rendering any services to any person, firm, corporation, other entity to whom such knowledge, in whole or in part, has been disclosed or is threatened to be modified or reformed to restrict Executive’s competition with disclosed. Nothing herein will be construed as prohibiting the Company from pursuing any other remedies available to the maximum extentCompany for such breach or threatened breach, as to time, geography and business scope, which including the court shall find enforceable; provided however, in no event shall the provisions recovery of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationdamages from Executive.
Appears in 3 contracts
Sources: Employment Agreement (First Federal Bankshares Inc), Employment Agreement (Magyar Bancorp, Inc.), Employment Agreement (First Federal Bankshares Inc)
Non-Competition. (a) The term of Non-Competition (herein so called) shall be for a term beginning on the date hereof and continuing until the second anniversary of the Date of Termination.
(b) During the Employment Period and term of Non-Competition, the Executive will not (other than for an additional period the benefit of one (1) year following the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”pursuant to this Agreement), Executive agrees not to, directly or indirectly, either through any form of ownership individually or as an individualofficer, director, officeremployee, principalshareholder, consultant, contractor, partner, joint venturer, agent, employee, employer, adviser, consultant, shareholder, partner, member equity owner or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business fresh meat or meat processing business (as defined below) in the metropolitan areas of Houstona “Competing Business”), A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area located in the United States where or Australia (the Company owns “Geographic Area”), (ii) hire, attempt to hire, or leases more than $10 million in gross asset value of assets as of the date of this Agreement contact or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or solicit with respect to hiring any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor employee of the Company, or (iii) divert or take away any customers of the Company in the Geographic Area. Notwithstanding the foregoing, the Company agrees that after the Date of Termination the Executive shall may be employed by, or perform services for, a person (as such term is defined in Subsection 3(c) above) whose business operations include a Competing Business provided that revenues from such Competing Business comprise less than fifty percent (50%) of the total revenues of such person at the time the Executive is initially employed or begins to perform services for such person, so long as Executive does not be deemed to have violated this Section 9 solely by reason personally render advice to, perform any services for, or otherwise participate in, such Competing Business operations of his passive ownership of 10% or such person. Notwithstanding the foregoing, the Company agrees that the Executive may own less than five percent of the outstanding equity interests voting securities of any public entity. publicly traded company that is a Competing Business so long as the Executive hereby does not otherwise participate in such competing business in any way prohibited by the preceding sentence.
(c) During the term of Non-Competition, the Executive will not use the Executive’s access to, knowledge of, or application of Confidential Information to perform any duty for any Competing Business; it being understood and agreed to that this Section 9(c) shall be in addition to and not be construed as a limitation upon the covenants in Section 9(b) hereof.
(d) The Executive acknowledges that the geographic boundaries, scope of prohibited activities activities, and the time duration of the provisions of this Section 9 preceding paragraphs are reasonable in nature and are no broader than are necessary to maintain the confidentiality and the goodwill of the Company’s proprietary information, plans and services and to protect the other legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained .
(e) As used in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, “Company” shall include the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified its direct or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work indirect subsidiaries or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationaffiliates.
Appears in 3 contracts
Sources: Executive Employment Agreement (S&c Holdco 3 Inc), Executive Employment Agreement (S&c Holdco 3 Inc), Executive Employment Agreement (S&c Holdco 3 Inc)
Non-Competition. (a) During the Employment Period his employment by BPLSC and for an additional a period of one (1) year following the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”)thereafter, Executive agrees not toEmployee will not, directly or indirectly, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without unless acting with the prior written consent of the Company (which consent may be withheld in its sole discretion)Board, engage in any manner directly or indirectly, own, manage, operate, join, control or participate in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, developmentownership, management, ownershipoperation or control, leasing and/or disposition 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, (i) any business or enterprise that competes with the Partnerships in any business or enterprise that contributes more than ten percent (10%) of retail shopping centers and/or BGH’s consolidated gross revenues, either during his employment by BPLSC or on the Termination Date, as applicable, in any capital raising activities related thereto. Executive understands and agrees state in which such business or enterprise is so operated (whether or not such business is physically located within those areas) (the “Geographic Area”), or (ii) in any business or enterprise that his covenants contained in this Section 9 are being given in consideration is a customer of the numerous mutual promises Partnerships if BGH derives at least five percent (5%) of its consolidated gross revenues either during his employment by BPLSC or on the Termination Date, as applicable, from such customer. It is recognized by Employee that the Partnerships’ business and agreements contained Employee’s connection therewith is or will be involved in this Agreement between activity throughout the Company and Executive, including, without limitation, those involving, employment, compensationGeographic Area, and Confidential Informationthat more limited geographical limitations on this non-competition covenant are therefore not appropriate. Employee also shall not, and in order directly or indirectly, during such one-year period (i) solicit or divert business from, or attempt to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to convert any client, account or used by a competitor customer of the Company. Notwithstanding Partnerships, whether existing at the foregoingdate hereof or acquired during Employee’s employment nor (ii) following Employee’s Termination of Employment, Executive solicit or attempt to hire any employee of the Partnerships or any person who has been an employee of the Partnerships at any time during the year prior to such Termination of Employment.
(b) The foregoing restriction shall not be deemed construed to have violated this Section 9 solely prohibit the ownership by reason Employee of his passive ownership of 10% or less of the outstanding equity interests than five percent (5%) of any public entity. Executive hereby acknowledges that the geographic boundaries, scope class of prohibited activities and the time duration securities of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, any corporation which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained is engaged in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions foregoing businesses having a class of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company securities registered pursuant to the maximum extentExchange Act, as to timeprovided that such ownership represents a passive investment and that neither Employee nor any group of persons including Employee in any way, geography and business scopeeither directly or indirectly, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing manages or exercises control of any employmentsuch corporation, work guarantees any of its financial obligations, otherwise takes any part in its business, other than exercising his rights as a shareholder, or business he undertakes with or on behalf seeks to do any of any person (including himself) or entity, whether or not for compensationthe foregoing.
Appears in 3 contracts
Sources: Severance Agreement (Buckeye Partners L P), Severance Agreement (Buckeye GP Holdings L.P.), Severance Agreement (Buckeye Partners L P)
Non-Competition. During From the Employment Period and for an additional period Closing Date until the third (3rd) anniversary of one (1) year following the termination Closing Date, the Sellers shall not own, manage, operate, control or participate in the ownership, management, operation or control of his employment by the Company for Cause ( as described any business, whether in Section 5a above) corporate, proprietorship or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”)partnership form or otherwise, Executive agrees not tothat is engaged, directly or indirectly, either through any form in the business of ownership or (a) soliciting, originating, underwriting, financing, refinancing and brokering Mortgage loans for sale to Mortgage Program Sponsors under the Mortgage Programs transferred to the Purchaser as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent part of the Company Acquired Assets or (which consent may be withheld b) acting as “primary servicer,” “master servicer, ” “special servicer” or “sub-servicer” in its sole discretionrespect of Mortgage loans (any such business referred to under clause (a) or (b), engage in any manner in a “Restricted Business”); provided, however, that the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants restrictions contained in this Section 9 are being given in consideration 5.11 shall not restrict (i) the Sellers from acting as a “special servicer” on a contract basis for Mortgage loans not involving the direct servicing of Mortgage loans for third party Securitizations or Mortgage Program Sponsors under the Mortgage Programs transferred to the Purchaser as part of the numerous mutual promises Acquired Assets, (ii) any activities of Capmark Bank, (iii) the Sellers from engaging in servicing (A) any Mortgage loans held by any Seller or any Affiliate of any Seller or for which any Seller or any such Affiliate acts as agent, or (B) any third party mortgage loans under programs and agreements contained in this Agreement between arrangements currently conducted by any Seller or any Affiliate of any Seller other than the Company and ExecutiveServicing Agreements, includingincluding New Markets Tax Credits, without limitation, those involving, employment, compensationmilitary housing, and Confidential Informationaffordable housing mortgage loans or bonds related to the low income housing tax credit business (for purposes of this clause (iii), the term “Affiliate” shall not include any Person that Controls Parent or any Person (other than Sellers and in order to protect any Person Controlled by any Seller) Controlled by such Person), (iv) any third party who acquires any Seller or Affiliate of the Company’s Confidential Information Sellers by way of a merger, consolidation, combination with, or acquisition of a material portion of the Properties of a Seller or (v) the acquisition by the Sellers and other legitimate business interests and to reduce the likelihood their respective Affiliates of irreparable damage which would occur (in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10aggregate) less than 2% or less of the outstanding equity interests capital stock of any public entitypublicly traded company engaged in a Restricted Business. Executive hereby acknowledges The Parties acknowledge and agree that the geographic boundaries, scope of prohibited activities and the time duration any remedy at Law for any breach of the provisions of this Section 9 are reasonable 5.11 may be inadequate, and are no broader than are necessary hereby consent to protect the legitimate business interests granting by any court of an injunction or other equitable relief, without the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer necessity of the Companyactual monetary loss being proved, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges in order that the Company would not employ him breach or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light threatened breach of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall such provision may be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationeffectively restrained.
Appears in 2 contracts
Sources: Asset Put Agreement (Leucadia National Corp), Asset Put Agreement (Leucadia National Corp)
Non-Competition. During Employee acknowledges that he has and, while employed, will acquire unique and valuable experience with respect to the Employment Period businesses, operations, plans and strategies of the Company and its subsidiaries. Employee hereby covenants and agrees that during the term of this Agreement and for an additional a period of one (1) year following the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”)thereafter, Executive agrees he will not to, directly or indirectly, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for indirectly compete with the benefit of any person or entity, without the prior written consent business of the Company (which consent may be withheld in or its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of terminationsubsidiaries. For purposes of this Section 9Agreement, the term “Businesscompete with the business of the Company and its subsidiaries” means shall include Employee’s participation in any operations whose primary business competes with any business now conducted by the acquisitionCompany or its subsidiaries, developmentincluding the sale of menswear or shoes at retail, managementthe sale or rental of occupational uniforms or other corporate wear merchandise or any material line of business proposed to be conducted by the Company or one or more of its subsidiaries known to Employee and with respect to which Employee devoted time as part of his employment hereunder on behalf of the Company or one or more of its subsidiaries, ownershipincluding but not limited to the business of dry cleaning, leasing and/or disposition whether such participation is individually or as an officer, director, joint venturer, agent or holder of retail shopping centers and/or an interest (except as a holder of a less than 1% interest in a publicly traded entity or mutual fund) of any capital raising activities related theretoindividual, corporation, association, partnership, joint venture or other business entity so engaged. Executive understands This non-competition covenant shall be applicable with respect to the United States and agrees that his covenants contained Canada and any other country in which Employee would be competing with the business of the Company or its subsidiaries as set forth in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company10. Notwithstanding the foregoing, Executive the Company acknowledges and agrees that Employee’s activities described in Schedule 10 hereto shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions constitute a breach of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company10. This noncompetition provision can only be revoked or modified by a writing signed by both Executive Employee and the Chief Executive Officer Company agree that a monetary remedy for a breach of this Section 10 or of Section 11 below will be inadequate and will be impracticable and extremely difficult to prove, and further agree that such a breach would cause the CompanyCompany irreparable harm, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges and that the Company would not employ him or provide him with access shall be entitled to its Confidential Information but for his covenants or promises contained in this Sectionspecific performance and/or temporary and permanent injunctive relief without the necessity of proving actual damages. The Company and Executive agree and stipulate Employee agrees that the agreements Company shall be entitled to such specific performance and/or injunctive relief, including temporary restraining orders, preliminary injunctions and covenants not to compete contained permanent injunctions, without the necessity of posting bond or other undertaking in this Section 9 hereof are fair connection therewith. Any such requirement of bond or undertaking is hereby waived by Employee and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware Employee acknowledges that in certain circumstances courts have refused the absence of such a waiver, a bond or undertaking may be required by the court. In the event of litigation to enforce certain terms of agreements not this covenant, the courts are hereby specifically authorized to competereform this covenant as and to the extent, but only to such extent, necessary in order to give full force and effect hereto to the maximum degree permitted by law. Therefore, Employee also agrees that if Employee is in furtherance of, and not in derogation of the provisions breach of this Section 910, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of may cease all payments required under this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationAgreement.
Appears in 2 contracts
Sources: Employment Agreement (Mens Wearhouse Inc), Employment Agreement (Mens Wearhouse Inc)
Non-Competition. During the Employment Period and for an additional For a period of one two (12) year following years after the termination Closing, neither Seller nor any of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not toits Affiliates shall, directly or indirectly, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage in any manner business in North America with respect to manufacturing or selling any products which are the same as any of the Products as in existence on the date hereof through and including the Closing Date in sales to customers in the Business Quick Service Restaurant and Food Service Distribution businesses (as defined below) in the metropolitan areas of Houstona “Prohibited Business”); provided, A▇▇▇▇▇however, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained nothing in this Section 9 are being given in consideration 5.9 shall prohibit or prevent Seller or any of its Affiliates from:
(i) continuing to conduct any business it is currently conducting that is not part of the numerous mutual promises Business and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur constitute a Prohibited Business, provided that revenues attributed to such business shall not in any twelve month period exceed Fifteen Million Dollars ($15,000,000);
(ii) selling boxboard used to make the event such information is provided to Products or used by a competitor to make any other items to any Person, including competitors of the Company. Notwithstanding the foregoing, Executive shall not be deemed Business;
(iii) owning or acquiring up to have violated this Section 9 solely by reason of his passive ownership an aggregate of 10% or less of the outstanding equity interests ownership interest of any public entity engaged in any Prohibited Business or making passive investments in the ordinary course of business in investment funds that make investments in entities engaged in any Prohibited Business, provided that, in either case, none of such Persons is active in the management or governance of such entity. Executive hereby acknowledges that ; or
(iv) owning or operating any Prohibited Business if such Prohibited Business was acquired as a result of a merger or other acquisition; provided, (x) the geographic boundaries, scope revenue generated by any Prohibited Business of prohibited activities and such acquired entity or business for the time duration preceding fiscal year do not account for more than 25% of the provisions total revenues of such entity or business for such period; and (y) no later than 12 months after such acquisition, the applicable acquiring Person shall have entered into an agreement providing for a divestiture of any Prohibited Business so acquired, so that following the closing of such divestiture the activities of the entity or business so acquired will once again be in compliance with this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensation5.9.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Cascades Inc), Purchase and Sale Agreement (RenPac Holdings Inc.)
Non-Competition. During (a) Upon any termination of Executive’s employment hereunder, other than a termination, (whether voluntary or involuntary) in connection with a Change in Control, as a result of which the Employment Period and Bank is paying Executive benefits under Section 6 of this Agreement, Executive agrees not to compete with the Bank and/or the Company for an additional a period of one (1) year following such termination within twenty-five (25) miles of any existing branch of the termination Bank or any subsidiary of his employment the Company or within twenty-five (25) miles of any office for which the Bank, the Company or a Bank subsidiary of the Company has filed an application for regulatory approval to establish an office, determined as of the effective date of such termination, except as agreed to pursuant to a resolution duly adopted by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Board. Executive (as described in Section 5c above) (the “Noncompetition Term”)agrees that during such period and within said area, cities, towns and counties, Executive agrees shall not towork for or advise, consult or otherwise serve with, directly or indirectly, either through any form of ownership entity whose business materially competes with the depository, lending or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent business activities of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing Bank and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information . The parties hereto, recognizing that irreparable injury will result to the Bank and/or the Company, its business and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur property in the event of Executive’s breach of this Subsection 11(a) agree that in the event of any such information breach by Executive, the Bank and/or the Company will be entitled, in addition to any other remedies and damages available, to an injunction to restrain the violation hereof by Executive, Executive’s partners, agents, servants, employers, employees and all persons acting for or with Executive. Executive represents and admits that Executive’s experience and capabilities are such that Executive can obtain employment in a business engaged in other lines and/or of a different nature than the Bank and/or the Company, and that the enforcement of a remedy by way of injunction will not prevent Executive from earning a livelihood. Nothing herein will be construed as prohibiting the Bank and/or the Company from pursuing any other remedies available to the Bank and/or the Company for such breach or threatened breach, including the recovery of damages from Executive.
(b) Executive recognizes and acknowledges that the knowledge of the business activities and plans for business activities of the Bank and affiliates thereof, as it may exist from time to time, is a valuable, special and unique asset of the business of the Bank. Executive will not, during or after the term of her employment, disclose any knowledge of the past, present, planned or considered business activities of the Bank or affiliates thereof to any person, firm, corporation, or other entity for any reason or purpose whatsoever (except for such disclosure as may be required to be provided to any federal banking agency with jurisdiction over the Bank or used by a competitor of the CompanyExecutive). Notwithstanding the foregoing, Executive shall may disclose any knowledge of banking, financial and/or economic principles, concepts or ideas which are not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less and exclusively derived from the business plans and activities of the outstanding equity interests Bank, and Executive may disclose any information regarding the Bank or the Company which is otherwise publicly available. In the event of any public entity. a breach or threatened breach by Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary Section, the Bank will be entitled to protect an injunction restraining Executive from disclosing, in whole or in part, the legitimate business interests knowledge of the Company. This noncompetition provision can only be revoked past, present, planned or modified by a writing signed by both Executive and the Chief Executive Officer considered business activities of the CompanyBank or affiliates thereof, as approved by the Boardor from rendering any services to any person, which specifically states an intent firm, corporation, other entity to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Thereforewhom such knowledge, in furtherance ofwhole or in part, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed has been disclosed or is threatened to be modified or reformed to restrict Executive’s competition with disclosed. Nothing herein will be construed as prohibiting the Company Bank from pursuing any other remedies available to the maximum extentBank for such breach or threatened breach, as to time, geography and business scope, which including the court shall find enforceable; provided however, in no event shall the provisions recovery of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationdamages from Executive.
Appears in 2 contracts
Sources: Employment Agreement (Kaiser Federal Financial Group, Inc.), Employment Agreement (Kaiser Federal Financial Group, Inc.)
Non-Competition. During Executive hereby acknowledges and agrees that, during the Employment Period course of employment, in addition to Executive’s access to Confidential Information, Executive has become, and for an additional period will become, familiar with and involved in all aspects of the business and operations of the Bank Entities. Executive hereby covenants and agrees that during the Term until one (1) year following after the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) Termination Date (the “Noncompetition TermRestricted Period”), Executive agrees will not toat any time (except for the Bank Entities), directly or indirectly, either through in any form of ownership or capacity (whether as an individuala proprietor, owner, agent, officer, director, officershareholder, organizer, partner, principal, agentmanager, member, employee, employercontractor, adviserconsultant or otherwise):
(a) provide any advice, consultantassistance or services of the kind or nature which he or she provided to any of the Bank Entities or relating to business activities of the type engaged in by any of the Bank Entities within the preceding two years, shareholderto any Person who owns or operates a Competitive Business or to any Person that is attempting to initiate or acquire a Competitive Business (in either case, partnera “Competitor”) if (i) such Competitor operates, member or is planning to operate, any office, branch or other facility (in any other individual case, a “Branch”) that is (or representative capacity whatsoeveris proposed to be) located within a fifty (50) mile radius of the Bank’s headquarters or any Branch of the Bank Entities and (ii) such Branch competes or will compete with the products or services offered or planned to be offered by the Bank Entities during the Restricted Period; or
(b) sell or solicit sales of Competitive Products or Services to Persons within such 50 mile radius, either for his or assist any Competitor in such sales activities. Notwithstanding any provision hereof to the contrary, this Section 8.4 does not restrict Executive’s right to (i) own benefit or for the benefit securities of any person Entity that files periodic reports with the Securities and Exchange Commission under Section 13 or entity, without the prior written consent 15(d) of the Company Securities Exchange Act of 1934, as amended; provided that Executive’s total ownership constitutes less than two percent (which consent may be withheld in its sole discretion), engage in any manner in 2%) of the Business outstanding securities of such company and that such ownership does not does not violate: (as defined belowA) in the metropolitan areas Code of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas Conduct or any other metropolitan area in policy of the United States where Bank, including any policy related to inside information; (B) any applicable securities law; or (C) any applicable standstill or other similar contractual obligation of the Company owns or leases more than $10 million in gross asset value of assets Bank. The parties acknowledge that they have also entered into that certain Non-Compete Agreement as of the date of this Agreement or as of the date of termination. For purposes of this Section 9August 1, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company2014, as approved by the Boardmay be amended from time to time, which specifically states an intent is in addition to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms lieu of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with restrictions hereunder (the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensation“Non-Compete Agreement”).
Appears in 2 contracts
Sources: Employment Agreement (Eagle Bancorp Inc), Employment Agreement (Eagle Bancorp Inc)
Non-Competition. During In consideration of the Employment Period and for an additional period of one (1) year following the termination of his employment payments to be received by the Employee hereunder, in recognition of the highly competitive nature of the industries in which the Company for Cause ( as described conducts its business and to further protect the goodwill of the Company and to promote and preserve its legitimate business interests, the Employee agrees that during the period commencing the date hereof and ending on the last day of the Protected Vesting Period, he will not:
(a) Engage in Section 5a aboveany Business Activities (other than on behalf of the Company) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not to, directly or indirectly, either through any form of ownership or whether such engagement is as an individualofficer, director, officer, principal, agentproprietor, employee, employerpartner, adviserinvestor (other than as a holder of less than 1% of the outstanding capital stock of a publicly traded corporation), consultant advisor, agent or otherwise, in any geographic area in which the products or services of the Company have been distributed or provided during the period commencing two years prior to the date hereof and ending on the Termination Date;
(b) Other than on behalf of the Company supply products or provide services (but only to the extent such restricted activities constitute Business Activities) to any customer with whom the Company has done any business during the period commencing two years prior to the date hereof and ending on the Termination Date, whether as an officer, director, proprietor, employee, partner, investor (other than as a holder of less than 1% of the outstanding capital stock of a publicly traded corporation), consultant, shareholderadvisor, partner, member agent or otherwise;
(c) Assist others in engaging in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent of the Company Business Activities in the manner prohibited to the Employee; and
(which consent may be withheld in d) Induce or attempt to induce employees of the Company, or its sole discretion), affiliates to engage in any manner activities hereby prohibited to the Employee or to terminate their employment. It is expressly understood and agreed that although the Employee and the Company consider the restrictions contained in each of clauses (a) through (d) above to be reasonable for the Business (as defined below) in purpose of preserving the metropolitan areas Company's goodwill, proprietary rights, trade secrets, valuable confidential business interests, relationships with specific prospective and existing customers and going concern value, and to protect the Company's business opportunities, markets and trade areas, if a final judicial determination is made by a court having jurisdiction that the time or territory or scope of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas restricted activities or any other metropolitan area restriction contained in this Agreement is an unenforceable restriction on the United States where the Company owns or leases more than $10 million in gross asset value of assets as activities of the date Employee, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time, restricted activities and territory and to such other extent as such court may judicially determine or as of indicate to be reasonable. Alternatively, if the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or court referred to above finds that any capital raising activities related thereto. Executive understands and agrees that his covenants restriction contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation12 is unenforceable, and Confidential Informationsuch restriction cannot be amended so as to make it enforceable, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive finding shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of affect the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms enforceability of any of the provisions other restrictions contained therein. It is further expressly understood and agreed that the providing of Professional Services shall not be restricted under this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationAgreement.
Appears in 2 contracts
Sources: Employment Agreement (Mascotech Inc), Employment Agreement (Mascotech Inc)
Non-Competition. During (a) Upon any termination of Executive's employment hereunder, other than a termination, (whether voluntary or involuntary) in connection with a Change in Control, as a result of which the Employment Period and Association is paying Executive benefits under Section 6 of this Agreement, Executive agrees not to compete with the Association and/or the Company for an additional a period of one (1) year following such termination within twenty-five (25) miles of any existing branch of the termination Association or any subsidiary of his employment the Company or within twenty-five (25) miles of any office for which the Association, the Company or a Association subsidiary of the Company has filed an application for regulatory approval to establish an office, determined as of the effective date of such termination, except as agreed to pursuant to a resolution duly adopted by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Board. Executive (as described in Section 5c above) (the “Noncompetition Term”)agrees that during such period and within said area, cities, towns and counties, Executive agrees shall not towork for or advise, consult or otherwise serve with, directly or indirectly, either through any form of ownership entity whose business materially competes with the depository, lending or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent business activities of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing Association and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information . The parties hereto, recognizing that irreparable injury will result to the Association and/or the Company, its business and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur property in the event of Executive's breach of this Subsection 11(a) agree that in the event of any such information breach by Executive, the Association and/or the Company will be entitled, in addition to any other remedies and damages available, to an injunction to restrain the violation hereof by Executive, Executive's partners, agents, servants, employers, employees and all persons acting for or with Executive. Executive represents and admits that Executive's experience and capabilities are such that Executive can obtain employment in a business engaged in other lines and/or of a different nature than the Association and/or the Company, and that the enforcement of a remedy by way of injunction will not prevent Executive from earning a livelihood. Nothing herein will be construed as prohibiting the Association and/or the Company from pursuing any other remedies available to the Association and/or the Company for such breach or threatened breach, including the recovery of damages from Executive.
(b) Executive recognizes and acknowledges that the knowledge of the business activities and plans for business activities of the Association and affiliates thereof, as it may exist from time to time, is a valuable, special and unique asset of the business of the Association. Executive will not, during or after the term of his employment, disclose any knowledge of the past, present, planned or considered business activities of the Association or affiliates thereof to any person, firm, corporation, or other entity for any reason or purpose whatsoever (except for such disclosure as may be required to be provided to any federal banking agency with jurisdiction over the Association or used by a competitor of the CompanyExecutive). Notwithstanding the foregoing, Executive shall may disclose any knowledge of banking, financial and/or economic principles, concepts or ideas which are not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less and exclusively derived from the business plans and activities of the outstanding equity interests Association, and Executive may disclose any information regarding the Association or the Company which is otherwise publicly available. In the event of any public entity. a breach or threatened breach by the Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary Section, the Association will be entitled to protect an injunction restraining Executive from disclosing, in whole or in part, the legitimate business interests knowledge of the Company. This noncompetition provision can only be revoked past, present, planned or modified by a writing signed by both Executive and the Chief Executive Officer considered business activities of the CompanyAssociation or affiliates thereof, as approved by the Boardor from rendering any services to any person, which specifically states an intent firm, corporation, other entity to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Thereforewhom such knowledge, in furtherance ofwhole or in part, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed has been disclosed or is threatened to be modified or reformed to restrict Executive’s competition with disclosed. Nothing herein will be construed as prohibiting the Company Association from pursuing any other remedies available to the maximum extentAssociation for such breach or threatened breach, as to time, geography and business scope, which including the court shall find enforceable; provided however, in no event shall the provisions recovery of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationdamages from Executive.
Appears in 2 contracts
Sources: Employment Agreement (Atlantic Liberty Financial Corp), Employment Agreement (Atlantic Liberty Financial Corp)
Non-Competition. During the Employment Period and for an additional For a period of one (1) year following four years from and after the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”)Closing, Executive agrees Seller Parent and Seller shall not, and shall cause their respective Subsidiaries not to, directly or indirectly, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion)Purchaser, engage directly or indirectly, in any manner (whether on Seller Parent’s or Seller’s own account, as an owner, operator, manager, consultant, investor, agent or otherwise) engage directly or indirectly in the Business anywhere in the Applicable Area, or own any interest in, manage, control, provide financing to, participate in (whether as an owner, operator, manager, consultant, investor, agent, representative or otherwise), or provide consulting or other services (in each case with respect to the Business) to, any Person that is engaged in the Business anywhere in the Applicable Area; provided, however, that this Section 5.6 shall not prohibit: (a) ownership of less than 5% of the outstanding equity of any Entity; or (b) Seller Parent, Seller or any of their respective Subsidiaries from acquiring a business or Entity that is engaged in the Business (as defined belowthe “Acquired Entity”) in provided that: (i) the metropolitan areas Business conducted by the Acquired Entity does not represent more than 10% of Houstonthe Acquired Entity’s overall business and operations; or (ii) such Seller Parent, A▇▇▇▇▇Seller or Subsidiary causes the disposal of the Business of such Acquired Entity within six months from the closing of the acquisition of such Acquired Entity (it being understood that, ▇▇▇▇▇▇ for the avoidance of doubt but without limiting the obligations of Seller or San AntonioSeller Parent under this Section 5.6, Texas this Section 5.6 shall not apply to any Entity that acquires an interest in, including all of, Seller Parent, Seller or any other metropolitan area in the United States where the Company owns of their respective Subsidiaries, or leases more than $10 million in gross asset value any Affiliates of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Companyacquirer). Notwithstanding the foregoing, Executive Seller Parent, Seller and its Affiliates (other than the Acquired Companies) shall be entitled to continue to operate and otherwise be involved in the Business through StayFriends GmbH (and the other European Subsidiaries of Classmates International, Inc.) as long as such Business does not target the Applicable Area (or customers located in the Applicable Area) and such Business’ contact with the Applicable Area is merely an incident of the websites of such Business being accessible in the Applicable Area, and such activities shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions considered a violation of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section5.6. The Company and Executive agree and stipulate immediately preceding sentence shall apply to: (A) any entity that acquires StayFriends GmbH (and/or the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light other European Subsidiaries of Classmates International, Inc.) or all or substantially all of the facts their assets; and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of (B) StayFriends GmbH and/or any of the provisions European Subsidiaries of this Section 9Classmates International, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with Inc., after the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions consummation of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationsuch acquisition.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (United Online Inc)
Non-Competition. (a) Each of Triangle, Shareholder and Subsidiary acknowledge that in and as a result of its ownership of the Assets or other interest in Triangle or Subsidiary, it has made use of, acquired, and/or added to confidential information of a special and unique nature deriving independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use (specifically excluding any information generally available to the public at large or disclosed by Buyer to third parties or any information disclosed because Triangle, Shareholder, or Subsidiary has a legal obligation to make such disclosure). Such information is hereinafter referred to as "Confidential Information" and includes, without limitation, the following information: customers, vendors, products, systems, data files, manuals, confidential reports, the amounts paid by or to customers, licensers, licensees, and vendors, the amounts paid for products and services, and other trade secrets and information Triangle, Shareholder, or Subsidiary knows or has reason to know, or will know or have reason to know, Buyer intends or expects to remain confidential. As a material inducement to Buyer to enter into this Agreement, each of Triangle, Subsidiary and Shareholder covenants and agrees that it shall not from and after the Closing and for a period of five (5) years following the Closing Date, divulge or disclose for any purpose whatsoever any Confidential Information except to the extent such information is or becomes generally available to the public at large or disclosed by Buyer to third parties or any information disclosed because Seller, the Subsidiary or Shareholder has a legal obligation to make such disclosure. Notwithstanding the foregoing, Seller, Triangle and Shareholder may reveal Confidential Information to the extent reasonably necessary to determine amounts due ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ pursuant to the TriEnda Agreement, or to enforce rights under the TriEnda Agreement, including furnishing such information to investment bankers, appraisers, lawyers, accountants, courts and arbitrators.
(b) During the Employment Period and for an additional five year period of one (1) year following the termination date of his employment this Agreement, each of Triangle, Shareholder and Subsidiary shall not, except as may be required by the Company for Cause ( law or as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not tomay be done with Buyer's written consent, directly or indirectly, either through any form of ownership or as an individuala shareholder, director, officermember, principal, co-partner, agent, employeefinancier, employer, adviserlender, consultant, shareholder, partner, member manager or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent of the Company whatsoever (which consent may be withheld in its sole discretion), i) engage in any manner in activities competitive with the Business (as defined below) in or the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ pallet logistics or San Antonio, Texas or any other metropolitan area refurbishing business in the United States where of America, (ii) solicit, serve, divert or assist any person in so soliciting, servicing or diverting any customers or vendors of Buyer or any of its affiliates to the Company extent such actions are related to the Business in the United States of America, (iii) solicit the employment of any of the employees of Triangle or Subsidiary that are employed by Buyer pursuant to this Agreement. The foregoing shall not apply to the activities of (i) Shareholder with respect to his actions on the Board of Directors of Alloyd Incorporated and (ii) any entity of which Triangle, Subsidiary or any Triangle Shareholder owns or leases more beneficially owns less than $10 million in gross asset value of assets as ten percent (10%) of the date outstanding voting power.
(c) Buyer and each of this Agreement or as of Triangle, Shareholder and Subsidiary each agree that the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands terms and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof 7.12 herein are fair and reasonable in light all respects to protect the legitimate interests of all of Buyer, including the facts geographical coverage and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance oftime period, and not in derogation that these restrictions are designed for the reasonable protection of the provisions Buyer's business. Each of Triangle, Shareholder and Subsidiary recognize that any breach of this Section 97.12 will cause irreparable injury to the goodwill and proprietary rights of Buyer, inadequately compensable in monetary damages. Accordingly, in addition to any other legal or equitable remedies that may be available to the Company Buyer, each of Triangle, Shareholder and Executive Subsidiary agree that Buyer will be able to seek to obtain immediate injunctive relief in the event form of a court should decline temporary restraining order, preliminary injunction, or permanent injunction against each of Seller, Shareholder and Subsidiary to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationAgreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Alltrista Corp), Asset Purchase Agreement (Alltrista Corp)
Non-Competition. During At all times while the Employment Period and for an additional period of one (1) year following the termination of his employment Executive is employed by the Company and for Cause ( as described in Section 5a aboveany Post- Employment Non-Compete Period (defined below) or the voluntary termination of employment elected by the Company, the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not toshall not, directly or indirectly, either through engage in or have any form of ownership interest in any sole proprietorship, partnership, corporation or business or any other person or entity (whether as an individualemployee, officer, director, officer, principalpartner, agent, employeesecurity holder, employercreditor, adviser, consultant, shareholder, partner, member consultant or otherwise) that directly or indirectly (or through any affiliated entity) engages in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent of competition with the Company (based on the business in which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns was engaged or leases more than $10 million in gross asset value of assets was actively planning on being engaged as of the date of this Agreement termination of the Employee’s employment and in the geographic areas in which the Company operated or was actively planning on operating as of the date of terminationtermination of the Employee’s employment); provided that such provision shall not apply to the Executive’s ownership of Common Stock of the Company or the acquisition by the Executive, solely as an investment, of securities of any issuer that is registered under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended, and that are listed or admitted for trading on any United States national securities exchange or that are quoted on the National Association of Securities Dealers Automated Quotations System, or any similar system or automated dissemination of quotations of securities prices in common use, so long as the Executive does not control, acquire a controlling interest in or become a member of a group which exercises direct or indirect control or, more than five percent of any class of capital stock of such corporation. For purposes of this Section 9As used herein, the “BusinessPost Employment Non- Compete Period” means shall be any period up to one year immediately following the acquisitionTermination Date that the Company may elect, developmentin its complete discretion, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained to be subject to the restrictive covenant set forth in this Section 9 are being given in consideration 6.1. For the avoidance of the numerous mutual promises and agreements contained in this Agreement between doubt, the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall may elect not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% any Post Employment Non-Compete Period apply. Within 10 days after the Termination Date, the Company shall notify Executive in writing whether or less of not it is electing to impose a Post Employment Non-Compete Period and, if applicable, the outstanding equity interests duration of any public entitysuch period. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified During any Post Employment Non-Compete Period elected by a writing signed by both Executive and the Chief Executive Officer of the Company, the Company shall continue to pay Executive his Base Salary hereunder, in the same amount and manner as approved if Executive was still employed by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensation.
Appears in 2 contracts
Sources: Employment Agreement (NV5 Global, Inc.), Employment Agreement (NV5 Global, Inc.)
Non-Competition. During (a) Upon any termination of Executive's employment hereunder, other than a termination, (whether by resignation, voluntary or involuntary) in connection with a Change in Control, as a result of which the Employment Period and Bank is paying Executive benefits under Section 6 of this Agreement, Executive agrees not to compete with the Bank and/or the Company for an additional a period of one (1) year following such termination within twenty-five (25) miles of any existing branch of the termination Bank or any subsidiary of his employment the Company or within twenty-five (25) miles of any office for which the Bank, the Company or a Bank subsidiary of the Company has filed an application for regulatory approval to establish an office, determined as of the effective date of such termination, except as agreed to pursuant to a resolution duly adopted by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Board. Executive (as described in Section 5c above) (the “Noncompetition Term”)agrees that during such period and within said area, cities, towns and counties, Executive agrees shall not towork for or advise, consult or otherwise serve with, directly or indirectly, either through any form of ownership entity whose business materially competes with the depository, lending or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent business activities of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing Bank and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information . The parties hereto, recognizing that irreparable injury will result to the Bank and/or the Company, its business and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur property in the event of Executive's breach of this Subsection 11(a) agree that in the event of any such information breach by Executive, the Bank and/or the Company will be entitled, in addition to any other remedies and damages available, to an injunction to restrain the violation hereof by Executive, Executive's partners, agents, servants, employers, employees and all persons acting for or with Executive. Executive represents and admits that Executive's experience and capabilities are such that Executive can obtain employment in a business engaged in other lines and/or of a different nature than the Bank and/or the Company, and that the enforcement of a remedy by way of injunction will not prevent Executive from earning a livelihood. Nothing herein will be construed as prohibiting the Bank and/or the Company from pursuing any other remedies available to the Bank and/or the Company for such breach or threatened breach, including the recovery of damages from Executive.
(b) Executive recognizes and acknowledges that the knowledge of the business activities and plans for business activities of the Bank and affiliates thereof, as it may exist from time to time, is a valuable, special and unique asset of the business of the Bank. Executive will not, during or after the term of his employment, disclose any knowledge of the past, present, planned or considered business activities of the Bank or affiliates thereof to any person, firm, corporation, or other entity for any reason or purpose whatsoever (except for such disclosure as may be required to be provided to any federal banking agency with jurisdiction over the Bank or used by a competitor of the CompanyExecutive). Notwithstanding the foregoing, Executive shall may disclose any knowledge of banking, financial and/or economic principles, concepts or ideas which are not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less and exclusively derived from the business plans and activities of the outstanding equity interests Bank, and Executive may disclose any information regarding the Bank or the Company which is otherwise publicly available. In the event of any public entity. a breach or threatened breach by Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary Section, the Bank will be entitled to protect an injunction restraining Executive from disclosing, in whole or in part, the legitimate business interests knowledge of the Company. This noncompetition provision can only be revoked past, present, planned or modified by a writing signed by both Executive and the Chief Executive Officer considered business activities of the CompanyBank or affiliates thereof, as approved by the Boardor from rendering any services to any person, which specifically states an intent firm, corporation, other entity to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Thereforewhom such knowledge, in furtherance ofwhole or in part, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed has been disclosed or is threatened to be modified or reformed to restrict Executive’s competition with disclosed. Nothing herein will be construed as prohibiting the Company Bank from pursuing any other remedies available to the maximum extentBank for such breach or threatened breach, as to time, geography and business scope, which including the court shall find enforceable; provided however, in no event shall the provisions recovery of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationdamages from Executive.
Appears in 2 contracts
Sources: Employment Agreement (Colonial Bankshares Inc), Employment Agreement (Colonial Bankshares Inc)
Non-Competition. (a) During the Employment Period period commencing on the Effective Date and for continuing until the earlier of (A) March 16, 2018 and (B) the date that Trican Parent ceases to directly or indirectly own at least 5% of the issued and outstanding Class A Units and 100% of the issued and outstanding Class C Units, Trican and its Affiliates shall not directly or indirectly: (i) compete with the Company or its Subsidiaries in the Territory in the oil field services business; (ii) have an additional period interest in any Person that competes in the Territory directly or indirectly with the Company or its Subsidiaries in any capacity (a “Competitive Business”), including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) knowingly interfere in any respect with the business relationships (whether formed prior to or after the date of this Agreement) between the Company and its Subsidiaries, on the one hand, and any of their respective customers, suppliers or partners, on the other hand; provided, however, that the foregoing shall not prohibit, or be interpreted as prohibiting, Trican Parent and its Affiliates from (1) year following conducting activities constituting or relating to the termination Excluded Businesses, the Excluded Assets and the Excluded Liabilities (as such terms are defined in the Trican Purchase Agreement); (2) making equity investments in publicly owned companies which constitute a Competitive Business, provided such investments do not exceed 10% of his employment by the Company for Cause ( outstanding common equity of such publicly owned companies or (3) entering into any licensing or other agreements relating to the intellectual property of Trican Parent and its Affiliates; provided, that such licensing or other agreements are in compliance with, and do not breach or violate, the Intellectual Property License Agreement (as described defined in the Trican Purchase Agreement). Notwithstanding the foregoing, nothing contained in this Section 5a above4.5(a) or elsewhere in this Agreement shall prevent a Person that acquires all of the voluntary termination equity interests of employment Trican Parent (whether by acquisition of equity interests, merger or otherwise) from continuing to conduct its and its Affiliates business and operations in and outside of the Executive (as described Territory; provided, that in Section 5c above) (the “Noncompetition Term”), Executive agrees not toevent a Person consummates an acquisition, directly or indirectly, either through of all or substantially all of the assets of Trican or a majority of the common equity interests of Trican (whether by acquisition of equity interests, merger or otherwise), Trican shall provide notice of such sale transaction (the “Transaction Notice”) no later than three days after the consummation of such acquisition transaction and the Company shall have the option, but not the obligation, upon notice to Trican delivered no later than 60 days after receipt of the Transaction Notice, to purchase the Units formerly Held by Trican prior to such sale transaction (including the Class C Units) for Fair Market Value (and in the case of Class C Units, such Fair Market value shall be calculated as if such Class C Units were converted to Class A Units on a fully diluted basis based on the Fair Market Value for such Units immediately prior to exercise of this purchase option) (as determined by an independent valuation firm selected by the Management Board (unless a prior valuation has been undertaken in the 30 day period prior to such calculation of Fair Market Value, in which case Fair Market Value shall be based on such prior valuation)).
(b) During the period commencing on the Effective Date and continuing until March 16, 2018, the Cerberus Funds, the Company and their respective Controlled Affiliates shall not directly or indirectly (A) compete with Trican Parent or its Affiliates in Canada in the oilfield services business, (B) have an interest in any form of ownership Person that competes directly or indirectly in Canada with Trican Parent or its Affiliates, including as an individuala partner, directorshareholder, officermember, employee, principal, agent, employeetrustee or consultant (other than (x) with respect to any industrial services or completion tools business and (y) Persons so competing with Trican Parent or its Affiliates with less than 25% of revenue in the prior fiscal year attributable to such Person’s Canadian operations, employerprovided that the Cerberus Funds, adviser, consultant, shareholder, partner, member the Company or their respective Affiliates (as applicable) substantially divest the Canadian assets or operations of such Person within 180 days of acquiring such Person) or (C) knowingly interfere in any other individual respect with the business relationships (whether formed prior to or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of after the date of this Agreement Agreement) between Trican Parent and its Subsidiaries, on the one hand, and any of their respective customers, suppliers or partners, on the other hand; provided, however, that the foregoing shall not (i) restrict the Cerberus Funds and its Affiliates (other than the Cerberus Managers and those personnel of Cerberus Capital Management, L.P. and Cerberus Operations & Advisory Company LLC that are directly involved in monitoring the investment in the Company) from participating in any distressed debt and lending transactions (including debt to equity conversions) and (ii) prohibit or be interpreted as prohibiting the Cerberus Funds, the Company or any of their respective Controlled Affiliates from making equity investments in any publicly owned company (provided such investment does not exceed 10% of the date outstanding common equity of termination. For purposes of this Section 9such publicly owned company) or, “Business” means in the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration case of the numerous mutual promises Cerberus Funds and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect its Controlled Affiliates (other than the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur ), from receiving any customary “equity kicker” in the event such information is provided to or used by connection with a competitor of the Companydebt investment in any Person. Notwithstanding the foregoing, Executive shall not be deemed to have violated nothing contained in this Section 9 solely by reason of his passive ownership of 10% 4.5(b) or less of elsewhere in this Agreement shall prevent a Person that acquires the outstanding equity interests of any public entity. Executive hereby all of the Company (whether by acquisition of equity interests, merger or otherwise) from continuing to conduct its and its Affiliates business and operations in and outside of the Territory.
(c) Each of Trican, the Company and the Cerberus Funds acknowledges and agrees that the time, scope, geographic boundaries, scope of prohibited activities area and the time duration of the other provisions of this Section 9 4.5 have been specifically negotiated by sophisticated commercial parties and agree that all such provisions are reasonable and are no broader than are necessary to protect under the legitimate business interests circumstances of the Companytransactions contemplated hereby. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and It is the Chief Executive Officer intention of the Company, as approved by parties that if any of the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete provisions contained in this Section 9 hereof 4.5 are fair held to cover a geographic area or to be for a length of time that is not permitted by applicable Law, or is in any way construed to be too broad or to any extent invalid, such provisions shall not be construed to be null, void and reasonable in light of all no effect, but to the extent such provision would then be valid or enforceable under applicable Law, such provisions shall be construed and interpreted or reformed to provide for a restriction or covenant having the maximum enforceable geographic area, time period and other provisions as shall be valid and enforceable under applicable Law.
(d) Each of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9Trican, the Company and Executive agree that the Cerberus Funds further acknowledges and agrees that, in the event of a court should decline to enforce any terms breach or threatened breach of any of the provisions of this Section 94.5, that Trican, the Company or the Cerberus Funds (as applicable) shall be entitled to immediate injunctive relief, as any such breach would cause irreparable injury for which such party would have no adequate remedy at law. Nothing contained in this Section 9 4.5 shall be deemed construed so as to be modified or reformed to restrict Executive’s competition with prohibit Trican, the Company or the Cerberus Funds or any of their respective Affiliates from pursuing any other remedies available to them under this Agreement, at law or in equity for any such breach or threatened breach.
(e) ▇▇▇▇▇ Group shall be an express third-party beneficiary under this Section 4.5 and the maximum extent, as Members hereby acknowledge and agree that ▇▇▇▇▇ Group shall be entitled to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall enforce the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensation4.5.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Keane Group, Inc.), Limited Liability Company Agreement (Keane Group, Inc.)
Non-Competition. During the Employment Period term of this Agreement and for an additional a period of one --------------- six (16) year following the termination of his employment by the months thereafter, Employee covenants and agrees with Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not tothat he shall not, directly or indirectly, either conduct, provide financial assistance to (whether through any form of ownership a loan or otherwise), act as an individualindependent contractor, directorhold an equity or profit sharing interest in (except for ownership of less than 1% of the outstanding share in a company whose stock is publicly traded), officerin any manner have a business interest in, principalbe employed by, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual manner take part in, any commodity or representative capacity whatsoever, either for his own benefit securities brokerage business or for the benefit of any person or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area business in the United States where of America which is competitive with the business of the Company owns or leases more than $10 million in gross asset value of assets as of such business is conducted during the date term of this Agreement or as of except that Employee at all times after the date of termination. For purposes term of this Section 9Agreement may execute orders as a floor broker and trade for his own account and, “Business” means in addition, may function as a commodity trading advisor, pool operator or introducing broker subject to the acquisitionrestrictions set forth in the next sentence of this paragraph and provided that Employee clears all commodity trades which are affected in connection with Employee's activities as a commodity trading advisor, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between pool operator or introducing broker through the Company so long as the Company has the ability to clear such trades and Executivedoes not charge more than for such clearing functions than the rates otherwise available to Employee. Provided, includinghowever, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive this provision number 6 shall not be deemed applicable to have violated this Section 9 Employee should Employee function solely by reason of his passive ownership of 10% as an attorney in any capacity relating to or less of connected with the outstanding equity interests of any public entityfutures industry. Executive hereby acknowledges that During the geographic boundaries, scope of prohibited activities and the time duration of the provisions term of this Section 9 Agreement and for a period of eighteen (l8) months thereafter, Employee covenants and agrees with the Company that he shall not, directly or indirectly; (a) solicit or provide commodity or securities brokerage services to any persons or entities that are reasonable and are no broader than are necessary to protect or were during the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified period by a writing signed by both Executive and the Chief Executive Officer this sentence customers of the Company, either as approved an employee, agent, consultant, licensee, independent contractor, owner or otherwise, or (b) solicit for employment or employ any persons who are or were during the period covered by this sentence employees of the company. In the event that the term of Employee's employment hereunder shall not be extended by the BoardCompany beyond the term provided for in paragraph 2 hereof on terms (including compensation) substantially equivalent to the terms set forth in this Agreement except by reason of a termination for "good cause" as defined in paragraph 2 hereof, which specifically states an intent Employee shall receive severance pay of $100,000 in a lump sum payment at the time of such termination. Employee shall remain subject to revoke or modify the provisions contained in this provisionparagraph 6 for the full periods specified herein. Executive acknowledges In the event that the Company would offers to extend the term of Employee's employment hereunder on substantially equivalent terms and Employee does not employ him or provide him with access accept such offer, Employee's obligations pursuant to its Confidential Information but for his covenants or promises the first sentence of this paragraph 6 shall cease and be of no further force and effect provided, however, if the Company shall pay Employee in a lump sum payment, an amount equal to 50% of Employee's annual base salary, Employee shall remain subject to the provisions contained in the first sentence of this Sectionparagraph 6 for the full six month period specified therein. The Company In the event, that Employee voluntarily terminates his employment hereunder, Employee's obligations pursuant to the first sentence of this paragraph 6 shall cease and Executive agree be of no further force and stipulate that effect; provided, however, if the agreements and covenants not company shall pay Employees in a lump sum payment, an amount equal to compete 50% of Employee's annual base salary, Employee shall remain subject to the provisions contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions first sentence of this Section 9, paragraph 6 for the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationfull six month period specified therein.
Appears in 2 contracts
Sources: Employment Agreement (Carl Jack 312 Futures Inc), Employment Agreement (Carl Jack 312 Futures Inc)
Non-Competition. During For the Employment Period Restricted Period, Parent and for an additional period the Sellers shall not, and shall not permit any of one (1) year following the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not other Restricted Seller Parties to, directly or indirectly, either through any form of ownership operate or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage in any manner business or enterprise that is engaged in providing contracted physical, occupational and speech-language therapy services to third-party (i) skilled nursing facilities, (ii) assisted living and senior care centers, (iii) pediatric centers or (iv) continuing care retirement communities (each, a “Restricted Line of Business”) within the Business (as defined below) in United States; provided, however, the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas Sellers or any other metropolitan area Restricted Seller Parties may operate or engage in any Restricted Line of Business in connection with any (i) business that is acquired after the United States where date hereof but prior to the Company owns or leases more than $10 million in gross asset value of assets as expiration of the date Restricted Period as a result of this Agreement any acquisition of any Person consummated by the Sellers or as any of their Affiliates and (ii) current or future hospital joint venture of the date Sellers or their Affiliates to the extent such operation or engagement in such Restricted Line of termination. For purposes Business is ancillary to the business of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands such joint venture and agrees conducted in a manner that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to consistent with past or used by a competitor of the Companycurrent practice. Notwithstanding the foregoing, Executive shall not be deemed solely in respect of clause (i) above, to have violated this Section 9 solely by reason the extent such operation or engagement in such Restricted Line of his passive ownership of 10Business (x) exceeds 50% or less of the outstanding equity interests acquired Person’s total revenues for the last reportable twelve-month period prior to the date of acquisition (“TTM Revenue”), no Seller or any Affiliate thereof may consummate the proposed acquisition without obtaining the Buyer’s prior written consent (which may be withheld and/or conditioned by the Buyer in the Buyer’s sole discretion) to the consummation of such acquisition, and (y) (A) generates $25,000,000 or more of the acquired Person’s TTM Revenue, or (B) exceeds 20% of the acquired Person’s TTM Revenue, the Sellers shall (and/or shall cause their Affiliates to) use commercially reasonable efforts to dispose of the Restricted Line of Business within one (1) year of the date of acquisition; provided, that with respect to this clause (y), if Select conducts a competitive auction in order to dispose of the Restricted Line of Business, Select will provide notice of any public entity. Executive hereby acknowledges that such auction and shall provide the geographic boundariesBuyer with the opportunity, scope of prohibited activities and subject to the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by Buyer entering into a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him customary confidentiality agreement with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce Select covering any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed confidential information to be modified or reformed furnished by Select with respect to restrict Executive’s competition with the Company such Restricted Line of Business, to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, participate in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationsuch auction.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Select Medical Corp)
Non-Competition. During the Employment Period and for an additional (a) For a period of one two (12) year following years commencing on the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) Closing Date (the “Noncompetition TermRestricted Period”), Executive agrees Seller Parent shall not, and shall not permit any other Restricted Party to, directly or indirectly, either through (i) engage in the Exploitation of any form of ownership (A) intravenous small molecule anti-hypertensive agent, (B) intravenous small molecule antiplatelet agent or (C) intravenous direct thrombin inhibitor anywhere in the world (the “Restricted Business”) or (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in any capacity, including as an individuala partner, directorshareholder, officermember, principal, agent, employeetrustee or consultant; provided, employerhowever, adviserthat, consultantnotwithstanding the foregoing, shareholder, partner, member this Section 9.10(a) shall not prohibit Seller Parent or in any other individual Restricted Party or representative capacity whatsoever, either for his own benefit any of their respective Affiliates from (i) acquiring or for the benefit owning securities of a Person whose securities are publicly traded on a recognized securities exchange or quotation system representing not in excess of five percent (5%) of any person or entityclass of such securities; (ii) after giving effect to the Transactions, without the prior written consent of the Company (which consent may be withheld in its sole discretion), continuing to engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas business currently conducted by any Restricted Party or any other metropolitan area of their respective Affiliates, whether or not any one or more products or services associated with such business activities might be deemed to be competitive in some manner with the United States where Restricted Business, including, for the Company owns or leases more than $10 million in gross asset value avoidance of assets as doubt, the Exploitation of the date products and product candidates of Seller Parent and its Subsidiaries other than the Products and the utilization of the Excluded Assets, but excluding the development or commercialization of any product candidate competitive in some manner with the Restricted Business, it being understood and agreed that the product candidates set forth on Schedule 9.10 are not competitive with the Restricted Business; (iii) purchasing products or services from, or selling products or services to, or otherwise engaging in a subcontracting or commercial relationship with, an entity that is engaged in a Restricted Business; (iv) performing its obligations under this Agreement or as any Ancillary Agreement or otherwise taking actions in connection with the winding up of the date Business; (v) acquiring any Person (or any interest therein), including through the creation of terminationany joint venture or partnership, that engages, directly or indirectly, in a Restricted Business, if (x) in its last full fiscal year prior to such acquisition, the consolidated revenues of such Person from the Restricted Business constituted less than twenty percent (20%) of the total consolidated revenues of such Person, or (y) in its last full fiscal year prior to such acquisition, the consolidated revenues of such Person from the Restricted Business constituted less than thirty-five percent (35%) of the total consolidated revenues of such Person and, following such acquisition, the applicable Restricted Party uses, until the expiration of the Restricted Period, reasonable best efforts to sell that portion of the business of such Person as constitutes a Restricted Business; or (vi) acquiring rights to any product (whether by purchase, license or otherwise) that may be used in a Restricted Business, as long as either such product is not so employed or is a product that falls within the exception set forth in clause (v) of this sentence as if any such product was an acquired Person for purposes of such clause (v). For purposes the avoidance of doubt, this Section 9.10(a) shall not bind any purchaser of all or substantially all of Seller Parent’s capital stock or assets, whether by merger, asset sale, stock sale or otherwise.
(b) Seller Parent acknowledges that a breach or threatened breach of this Section 99.10 would give rise to irreparable harm to Buyer, “Business” means the acquisitionfor which monetary damages would not be an adequate remedy, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and hereby agrees that his in the event of a breach or a threatened breach by Seller Parent of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond or prove damages).
(c) Seller Parent acknowledges that the restrictions contained in this Section 9.10 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. In the event that any covenant contained in this Section 9.10 should ever be adjudicated to exceed the time, geographic, product or service 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 9 9.10 and each provision hereof are being given in consideration severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensationremaining covenants or provisions hereof, and Confidential Information, and any such invalidity or unenforceability in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive any jurisdiction shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% invalidate or less of the outstanding equity interests of render unenforceable such covenant or provision in any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationother jurisdiction.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Medicines Co /De)
Non-Competition. During (a) Executive agrees that, during the Employment Period and for an additional a period of one twelve (12) months after the Employment Period ends, whether voluntarily or involuntarily, Executive will not directly or indirectly:
(1) year following induce or attempt to induce any person who is employed by or otherwise engaged to perform services for the termination Corporation to cease working for the Corporation;
(2) induce or attempt to induce any customer, client, vendor, or supplier of his employment by the Company for Cause ( as described in Section 5a aboveCorporation to cease doing business with the Corporation; or
(3) engage or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not to, directly or indirectlyparticipate, either through any form of ownership individually or as an individualemployee, directorcontractor, consultant, principal, owner, partner, agent, trustee, officer, principaldirector or shareholder of a corporation, agentpartnership or other business entity, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual business which competes with the Corporation or representative capacity whatsoeverengages in any line of business which the Corporation has entered or internally announced an intention to enter prior to the end of the Employment Period, either for his own benefit or for including, without limitation, the benefit provision of radiology services through the Internet to Providers. Notwithstanding the foregoing, nothing in this Article shall be deemed to preclude Executive from holding less than 1% of the outstanding capital stock of any person corporation required to file periodic reports with the Securities and Exchange Commission under Section 13 or entity, without the prior written consent 15(d) of the Company Securities Exchange Act of 1934, as amended, and the securities of which are listed on any national securities exchange or quoted on the National Association of Securities Dealers Automated Quotation System or traded on the over-the-counter market.
(which consent may be withheld in its sole discretion), engage in any manner b) Executive acknowledges that the Corporation has expended substantial time and expense in the Business (as defined below) in the metropolitan areas acquisition, research and development of Houstonprocesses, Atechnology, /s/ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ Executive /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ Corporation techniques and products which are unique to the Corporation or San Antonionot generally known to others and which could be unfairly taken or used by others in competition with the Corporation, Texas or any other metropolitan area in and further acknowledges that competition with the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of terminationCorporation is not based strictly on geographical location. For purposes of this Section 9Accordingly, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements restrictions contained in this Agreement between are reasonable. If the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor scope of the Company. Notwithstanding the foregoingrestrictions contained herein is too broad to permit enforcement of such restrictions to their full extent, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 then such restrictions shall be deemed construed or re-written (“blue-lined”) so as to be modified or reformed to restrict Executive’s competition with the Company enforceable to the maximum extentextent permitted by law, as and Executive hereby consents, to timethe extent Executive may lawfully do so, geography and business scope, which to the court shall find enforceable; provided however, judicial modification of the scope of such restrictions in no event shall the provisions of this Section 9 be deemed any proceeding brought to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationenforce such restrictions.
Appears in 2 contracts
Sources: Employment Agreement (Virtual Radiologic CORP), Employment Agreement (Virtual Radiologic CORP)
Non-Competition. Notwithstanding any non-competition agreement previously existing by and between the Optionee and the Company, in consideration for this Option, the Optionee agrees to the following:
(A) During the Employment Period Optionee's employment with the Company and for an additional a period of one two (12) year following the termination of his employment by the Company for Cause ( as described in Section 5a above) years thereafter, Optionee will not, unless acting pursuant hereto or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not to, directly or indirectly, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without with the prior written consent of the Company (which consent may be withheld in its sole discretion)Board of Directors of the Company, engage in any manner directly or indirectly, own, manage, operate, join, control, finance or participate in the Business (ownership, management, operation, control or financing of, or be connected as defined below) an officer, director, employee, partner, principal, agent, representative, consultant or otherwise with, or use or permit his name to be used in connection with, any business or enterprise, in direct competition with the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in Company's business. The Optionee acknowledges and agrees that adherence to the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes terms of this Section 9, “Business” means 9 does not preclude Optionee from earning a livelihood and that the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants restrictions contained in this Section 9 are being given in consideration of the numerous mutual promises reasonable and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order necessary to protect the Company’s Confidential Information and other 's legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor conduct of the Company. Notwithstanding the foregoing, Executive its business.
(B) The foregoing restriction shall not be deemed construed to have violated this Section 9 solely prohibit the ownership by reason Optionee of his passive ownership of 10% or less of the outstanding equity interests not more than five percent (5%) of any public entity. Executive hereby acknowledges that the geographic boundaries, scope class of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms securities of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s corporation which is in competition with the Company and which corporation has a class of securities registered pursuant to the maximum extentSecurities Exchange Act of 1934, provided that such ownership represents a passive investment and that neither Optionee nor any group of persons including Optionee in any way, either directly or 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 timedo any of the foregoing.
(C) During the Optionee's employment with the Company and for a period of two (2) years thereafter, geography and business scopeOptionee will not call on or solicit, either directly or indirectly, any person, firm, corporation or other entity who or which at the court shall find enforceable; provided howevertime of Optionee's termination was, in no event shall or within two (2) years prior thereto had been, a customer of the provisions Company or any of this its affiliates with respect to the activities prohibited by Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationhereof.
Appears in 2 contracts
Sources: Incentive Stock Award Agreement (Valera Pharmaceuticals Inc), Non Qualified Stock Option Agreement (Valera Pharmaceuticals Inc)
Non-Competition. During the Employment Period and for an additional period (a) Except (i) with respect to their ownership of one (1) year following the termination of his employment by interests in the Company for Cause ( and (ii) as described permitted by this Section 10.03 or by Section 10.06, neither Comcast nor GE nor any of their respective Subsidiaries will engage in any Company Principal Business. This Section 5a above10.03 shall cease to be applicable to any Person at such time as such Person is no longer a Subsidiary of Comcast or GE, as the case may be, and shall not apply to any Person that purchases assets, operations or a business from Comcast or GE, or one of their respective Subsidiaries, if such Person is not a Subsidiary of Comcast or GE, as the case may be, after such transaction is consummated. This Section 10.03 does not apply to any Subsidiary of GE or Comcast in which a Person who is not an Affiliate of GE or Comcast, as the case may be, holds equity interests and with respect to which GE or Comcast or another of their respective Subsidiaries, as applicable, has contractual or legal obligations (including fiduciary duties of representatives on the board of directors or similar body of such Subsidiary) existing as of the date hereof that limit GE’s or Comcast’s ability to impose on the voluntary termination subject Subsidiary a non-competition obligation such as that in this Section 10.03.
(b) Notwithstanding the provisions of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”10.03(a), Executive agrees not to, directly or indirectly, either through any form and without implicitly agreeing that the following activities would be subject to the provisions of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretionSection 10.03(a), engage nothing in this Agreement shall preclude, prohibit or restrict: (i) GE, or any of its Subsidiaries, from engaging in any manner in any (A) Financial Services Business, (B) Existing Business Activities, (C) GE De Minimis Business or (D) Satellite Business; or (ii) Comcast or any of its Subsidiaries, from engaging in any manner in any (A) Comcast Permitted Business or (B) Comcast De Minimis Business.
(c) Notwithstanding the provisions of Section 10.03(a), GE or any of its Affiliates may make a Mixed Competing Business Acquisition; provided that if such acquisition would otherwise be prohibited by this Section 10.03, promptly following such acquisition, GE, or its Affiliate, as applicable, shall offer the Company in writing the opportunity to acquire, or invest in, directly or through a Subsidiary of the Company, the Company Principal Business acquired, or invested in, by GE or its Affiliate in such Mixed Competing Business Acquisition. The writing pursuant to which such offer is made shall include a summary of the material terms of the offer, including the price of such offer. Such terms shall include (as defined belowx) a price that reflects GE’s reasonable good faith determination of the portion of the aggregate purchase price paid by GE or its Affiliate in the metropolitan areas Mixed Competing Business Acquisition that was attributable to the Company Principal Business included in such Mixed Competing Business Acquisition and (y) other commercially reasonable arms’ length terms. In the event that the Company disputes GE’s determination of Houstonprice or the commercial reasonableness and arm’s length nature of the other terms included in such offer, A▇▇▇▇▇the Company shall provide written notice to GE and the dispute shall be resolved by a mutually agreed upon appraiser (who shall be an independent third party with relevant expertise) pursuant to an appraisal process not to exceed 30 calendar days and conducted in New York, ▇▇▇▇▇▇ New York under the Commercial Arbitration Rules of the American Arbitration Association in effect at the time of the arbitration, except as they may be modified herein or San Antonioby agreement of the parties. If an appraisal process is necessary and Comcast and GE do not mutually select and appoint such appraiser within five Business Days following delivery of the notice required pursuant to the preceding sentence, Texas or any other metropolitan area an appraiser shall be selected and appointed in the United States where manner set forth in the final two sentences of Section 10.02(f). All fees and disbursements of the Appraiser shall be shared equally by Comcast and GE.
(d) Promptly after making a written offer as set forth in Section 10.03(c) above (and in any event within 10 Business Days thereafter), GE shall provide the Company owns or leases more than $all material information available to GE with respect to the Company Principal Business. GE shall include in any third party confidentiality agreement entered into in connection with the proposed transaction subject to such offer a provision permitting GE to comply with its disclosure obligations under this Section 10.03(d). The Company shall have 10 million in gross asset value Business Days from the later of assets as of (i) the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event all such information is provided and (ii) the completion of any appraisal process conducted pursuant to or used by a competitor Section 10.03(c) to decide whether to accept the offer.
(e) If prior to the expiration of such 10 Business Day period the Company accepts such offer, the parties shall work together in good faith to complete the Company’s acquisition of, or investment in, the Company Principal Business as soon as reasonably practicable, subject to receipt of required regulatory approvals. Notwithstanding the foregoingprovisions in Section 4.10(a), Executive shall the GE Members may not exercise any rights they may have under Section 4.10(a) that would prohibit or otherwise impede such Company Principal Business acquisition or investment (including in connection with the incurrence of any Debt required to complete such acquisition or investment).
(f) If prior to the expiration of such 10 Business Day period the Company fails to accept such offer, and the ownership of the Company Principal Business by GE or its Affiliates would otherwise be deemed to have violated prohibited by this Section 9 solely by reason of his passive ownership of 10% 10.03, then GE or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Companyits Affiliate, as approved by the Boardcase may be, which specifically states an intent shall be required to revoke or modify this provision. Executive acknowledges that divest the Company would not employ him Principal Business within a commercially reasonable period of time.
(g) The Company’s decision whether to accept such offer (or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not grant any consent to compete contained in this Section 9 hereof are fair and reasonable in light waive any rights of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing respect of such offer) shall be made by only those members of the Board designated by the Comcast Members.
(h) This Section 10.03 shall terminate and be of no further force and effect upon the earlier of (i) Comcast and its Subsidiaries no longer holding (directly or indirectly) any employment, work Units or business he undertakes with (ii) GE and its Subsidiaries no longer holding (directly or on behalf of indirectly) any person (including himself) or entity, whether or not for compensationUnits.
Appears in 2 contracts
Sources: Limited Liability Company Agreement, Limited Liability Company Agreement (Comcast Corp)
Non-Competition. During Employee agrees that during the Employment Period period of Employee's employment with the Company and for an additional a period of one (1) year following 18 months from the termination last payment of his employment compensation to Employee by the Company for Cause ( as described Company, Employee shall not engage in Section 5a above) or the voluntary termination of employment by the Executive (as described participate in Section 5c above) (the “Noncompetition Term”), Executive agrees not toany business activity that competes, directly or indirectly, either through any form with the businesses of ownership the Company, or as an individualits subsidiaries or affiliates, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for provided that Employee shall not be precluded from competing with the benefit of any person or entity, without the prior written consent business of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (event of a termination of Employee's employment as defined below) in the metropolitan areas a result of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where a material breach by the Company owns or leases more than $10 million in gross asset value of assets as of the date provisions of this Agreement or as of in the date of terminationevent that Employee's employment is terminated by the Company other than for cause. For purposes of this Section 9, “Business” means Employee shall be deemed to "compete, directly or indirectly" with the acquisitionbusinesses of the Company, developmentor its subsidiaries or affiliates if Employee is or becomes engaged, managementotherwise than at the request of the Company, as an officer, director or employee of, or is or becomes associated in a management or ownership, leasing and/or disposition consultant or agent, capacity with, any corporation, partnership or other enterprise or venture the business of retail shopping centers and/or which includes wholesale, private label web hosting and email services in Canada or the United States, or any capital raising activities related thereto. Executive understands and agrees that his covenants contained other business engaged in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between from time to time by the Company and Executive, includingis responsible for the performance of functions similar to those performed by Employee during the 12 month period immediately preceding Employee's termination. Notwithstanding anything to the contrary contained herein Employee may, without limitationbeing deemed to compete, those involvingdirectly or indirectly, employment, compensation, and Confidential Information, and in order to protect with the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor businesses of the Company. Notwithstanding the foregoing, Executive shall Company or its subsidiaries or affiliates own not be deemed to have violated this Section 9 solely by reason more than 5% of his passive ownership of 10% or less any class of the outstanding equity interests securities of any public entitysuch corporation listed on a national securities exchange or traded in the over-the-counter market. Executive hereby acknowledges that It is the geographic boundaries, scope of prohibited activities desire and the time duration intent of the parties that the provisions of this Section 9 are reasonable shall be enforceable to the fullest extent permissible under the laws and are no broader than are necessary to protect the legitimate business interests public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular portion of the Companythis Section 9 is adjudicated unenforceable in any jurisdiction, such adjudication shall apply only in that particular jurisdiction in which such adjudication is made. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges The parties recognize that the Company would not employ him or provide him with access to its Confidential Information but will have no adequate remedy at law for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all breach by Employee of the facts and circumstances of the relationship between Executive and the Company; covenants provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, and, in the event of such breach, the Company and Executive Employee hereby agree that in the event Company will be entitled to an injunction, a court should decline decree of specific performance, mandamus or other appropriate remedy to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationsuch covenants.
Appears in 2 contracts
Sources: Employment Agreement (Hostopia.com Inc.), Employment Agreement (Hostopia.com Inc.)
Non-Competition. During The Executive acknowledges that in the Employment Period course of his or her employment with Employer, Employer will give the Executive access to the Confidential Information and the Executive's knowledge of the Confidential Information will enable the Executive to put the Employer at a significant competitive disadvantage if the Executive is employed or engaged by or becomes involved in a Competitive Business. Accordingly, during the term of this Agreement and for an additional a period of one twelve (112) year months immediately following the termination of his the Executive's employment (unless for a shorter period of time as determined by the Company for Cause ( Employer as described in Section 5a above) below), for whatever reason, whether voluntary or the voluntary termination of employment by involuntary (with or without Cause), the Executive (as described in Section 5c above) (will not, without the “Noncompetition Term”), Executive agrees not towritten consent of Employer, directly or indirectly, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member individually or in partnership or in conjunction with any other individual person carry on, be engaged in, directly or representative capacity whatsoeverindirectly, either for his own benefit or for the benefit of any person or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executivewhatsoever, including, without limitation, those involvingas an employee, employmentconsultant, compensationor advisor in any Competitive Business within North America, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, an exceptions will be made following termination in the case of (a) another business wherein the Executive is not working in a competitive capacity and the Company competitive products and services that constitute a Competitive Business are aware that in certain circumstances courts have refused to enforce certain terms less than ten percent of agreements not to compete. Thereforesuch business' total revenue, or (b) Executive's ownership of the shares of a publicly-traded company where such ownership is less than 5% of the shares outstanding and Executive otherwise has no involvement, directly or indirectly, in furtherance ofthe operation, and not in derogation management or support of the provisions of this Section 9, the Company said company. The Employer and Executive agree that in the event case of a court should decline to enforce any terms of any termination of the provisions Executive's employment without Cause as described in Section 13(e), the length of the non-competition period in this Section 910 and the length of the non-solicitation period in Section 11 may be shortened by the Employer in its sole discretion, by the Employer providing the Executive with written notice thereof within ten (10) business days of the effective date of termination. In no event may the Employer reduce the non-competition and the non-solicitation provision to less than three (3) months. Executive will be entitled to severance pay from Employer during the duration of the non-competition period and the non-solicitation period, as such duration may be adjusted hereunder, all in accordance with Section 13(e). The Executive and Employer further agree that this Section 9 the duration of the non-competition and the duration of the non-solicitation period shall be deemed equal and they shall run simultaneous with one another, so that by way of example, if the Employer were to be modified or reformed shorten the non-competition period to restrict Executive’s competition with six months following termination, then the Company non-solicitation period shall automatically shorten to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationsame six months.
Appears in 2 contracts
Sources: Employment Agreement (Daleen Technologies Inc), Employment Agreement (Daleen Technologies Inc)
Non-Competition. During the Employment Period and for an additional period of one (1) year following the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not to, directly or indirectly, either through any form of ownership or For so long as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member Investor or in any other individual or representative capacity whatsoever, either for his own benefit or for its Affiliated Funds has a right to designate a Representative to the benefit of any person or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ Holdings Board, the TNC Supervisory Board or San Antonioas an AlpInvest Observer, Texas such Investor and its respective Affiliates, all Persons Controlled by that Investor or by any of that Investor’s Affiliates and any “group” (as determined under Section 13(d)(3) of the Exchange Act) of which such Investor or any other metropolitan area of its Affiliates is a member will be prohibited from owning, managing, operating, controlling or participating in the United States where ownership, management, operation or control of any Person listed in Schedule 10 hereto (as such Schedule may be amended from time to time by the Company owns ▇▇▇▇▇▇▇ Holdings Board, a “Named Competitor”), unless consented to by the ▇▇▇▇▇▇▇ Holdings Board, provided that:
10.3.1 This Article 10.3 shall not prohibit any Person from acquiring or leases holding a passive investment in any Named Competitor, which (a) does not represent more than $10 million in gross asset value of assets as 5% of the date aggregate amount of equity invested in that Named Competitor, (b) does not entitle the holder to more than 5% of any pro rata distribution of profits or capital made by that Named Competitor, (c) does not entitle the holder to exercise more than 5% of the votes exercisable at a general meeting of shareholders of that Named Competitor, (d) does not include and is not otherwise combined with any entitlement to appoint any directors, officers, observers or other representatives to any body or committee of that Named Competitor or any Affiliate of that Named Competitor (and no director, employee or other representative of the Investor concerned or any Affiliate of that Investor holds any position on any such body or committee as a matter of fact), and (e) is not in any way subject to any agreement or arrangement made between the Investor concerned or any Affiliate of that Person and any other shareholder of or investor in that Named Competitor;
10.3.2 This Article 10.3 shall not prohibit any Investor which is a fund of funds to make or hold a non-Controlling investment in a fund which in turn has an investment in a Named Competitor or otherwise engages in an activity that would constitute a breach of this Article 10.3 if that fund was an Investor; and
10.3.3 In the event that an Investor or an Affiliate of an Investor acts in breach of this Article 10.3:
(a) Article 10.2.2 shall apply mutatis mutandis to the Investor concerned and to all other Investors which are Affiliated with that Investor (treating such Named Competitor as a Competing Enterprise thereunder); and
(b) To the extent that the occurrence of such breach is not reasonably within the control of the Investor concerned, any of its Affiliates or any person Controlled by that Investor or by any of that Investor’s Affiliates, no other remedies shall be available to the other Parties. In all other circumstances, unless such breach is promptly (and in any event within three (3) Business Days following its occurrence) and completely cured by the Investor or Investors concerned, the Investor or Investors concerned shall be considered in material breach of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensationliable for all damages resulting therefrom, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event Parties may seek specific enforcement or injunctive relief against such information is provided to Investor or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. ThereforeInvestors, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition accordance with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationArticle 11.8.
Appears in 2 contracts
Sources: Shareholder Agreement, Shareholders' Agreement (Nielsen Holdings B.V.)
Non-Competition. During the Employment Period period beginning on the Closing Date and for an additional period of one (1) year following ending on the termination of his employment by date that is three years and six months after the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) Closing Date (the “Noncompetition TermRestricted Period”), Executive agrees Seller shall not, and shall cause its Affiliates (together with Seller, the “Restricted Entities”) not to, directly or indirectly, either through any form of ownership issue or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or sell in any other individual state or representative capacity whatsoeverjurisdiction within the United States, either for his own benefit any products or for the benefit services of any person or entity, without the prior written consent a type that comprises part of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement hereof and that was underwritten, issued, sold, renewed or serviced as part of the Business during the two years prior to the date of termination. For purposes of this Section 9hereof (the “Competing Businesses”); provided, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 5.13 shall be deemed to be modified not prohibit or reformed to restrict Executive’s competition with in any way prevent or restrict:
(a) any Restricted Entity from operating any business other than the Company to Business (including the maximum extent, as to time, geography business described in the proviso included in the definition of “Business”) or from operating the Business from and business scope, after the time at which the court shall find enforceableBusiness or any portion thereof is recaptured under any coinsurance agreement;
(b) any Restricted Entity from providing (i) provider network access or network management services; (ii) medical management, case management, or cost containment services; or (iii) administrative services for short-term disability plans that are provided in conjunction with a self-funded plan sponsor’s medical benefits coverage or plan that is administered or serviced by a Restricted Entity.
(c) any Restricted Entity from performing any act or conducting any business expressly required by this Agreement or any other Transaction Agreement;
(d) any Restricted Entity from entering into a reinsurance agreement or similar arrangement primarily reinsuring the Competing Business of a ceding company that is not a Restricted Entity, so long as none of the Restricted Entities engages in the issuing, underwriting, selling, distributing, marketing, delivering, cancelling or administering of such underlying reinsured business;
(e) any Restricted Entity from (A) making any investment or providing advisory services (or activities related thereto) in a fiduciary or agency capacity and carried out on behalf of clients or other third party beneficiaries in the ordinary course of business, or (B) making passive investments for general insurance accounts or investment management, proprietary investing or trading activities in the ordinary course of its businesses; provided however, that in no event shall the provisions aggregate ownership interest held by Restricted Entities in any Person engaged in a Competing Business, whether directly or indirectly, equal or exceed 20% of the aggregate voting power or issued and outstanding equity securities of such Person, subject to Sections 5.13(f) and (g) below;
(f) the ownership of, any affiliation with, or the conduct of any other activity with respect to, a Person that conducts, either directly or indirectly, a Competing Business (any such person, together with all of its Affiliates, a “Competing Person”) that is the result of (A) the merger, consolidation, share exchange, sale or purchase of assets, scheme of arrangement or similar business combination involving any Restricted Entity with any Competing Person or (B) the acquisition of 20% or more of the voting power or outstanding equity interests in any Competing Person by any Restricted Entity, if, in the case of either (A) or (B), at least 66 2/3% of the total consolidated revenues of such Competing Person in the calendar year prior to such ownership or affiliation was derived from activities that do not constitute Competing Business; provided, however, that such Restricted Entity may proceed with such acquisition of a Competing Person that derived in excess of 33 1/3% of its total consolidated revenues in its most recent fiscal year from activities that constitute Competing Business only if such Restricted Entity divests, within 24 months of its acquisition, a sufficient portion of such Competing Person such that the total consolidated revenues from activities that constitute Competing Business that remain with any such Competing Person after such divestment over the last four full fiscal quarters prior to such acquisition are not greater than 33 1/3% of its consolidated revenues for such period; or
(g) subject to the foregoing clause (f), any Restricted Entity from foreclosing on collateral of or acquiring any of the outstanding capital stock or other interests in any person that has outstanding indebtedness to any Restricted Entity, or engaging in any activities otherwise prohibited by this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during 5.13 in connection with any such Person as a result of the Noncompetition Term, he shall immediately notify the Company acquisition of such capital stock or other interests in writing of any employment, work or business he undertakes connection with or on behalf of any person (including himself) or entity, whether or not for compensationa debt previously contracted.
Appears in 2 contracts
Sources: Master Transaction Agreement, Master Transaction Agreement (Aetna Inc /Pa/)
Non-Competition. During (a) Upon any termination of Executive’s employment hereunder, other than a termination (whether by resignation, voluntary or involuntary) in connection with a Change in Control, as a result of which the Employment Period and Bank is paying Executive benefits under Section 6 of this Agreement, Executive agrees not to compete with the Bank and/or the Company for an additional a period of one (1) year following such termination within twenty-five (25) miles of any existing branch of the termination Bank or any subsidiary of his employment the Company or within twenty-five (25) miles of any office for which the Bank, the Company or a Bank subsidiary of the Company has filed an application for regulatory approval to establish an office, determined as of the effective date of such termination, except as agreed to pursuant to a resolution duly adopted by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Board. Executive (as described in Section 5c above) (the “Noncompetition Term”)agrees that during such period and within said area, cities, towns and counties, Executive agrees shall not towork for or advise, consult or otherwise serve with, directly or indirectly, either through any form of ownership entity whose business materially competes with the depository, lending or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent business activities of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing Bank and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information . The parties hereto, recognizing that irreparable injury will result to the Bank and/or the Company, its business and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur property in the event of Executive’s breach of this Subsection 11(a) agree that in the event of any such information breach by Executive, the Bank and/or the Company will be entitled, in addition to any other remedies and damages available, to an injunction to restrain the violation hereof by Executive, Executive’s partners, agents, servants, employers, employees and all persons acting for or with Executive. Executive represents and admits that Executive’s experience and capabilities are such that Executive can obtain employment in a business engaged in other lines and/or of a different nature than the Bank and/or the Company, and that the enforcement of a remedy by way of injunction will not prevent Executive from earning a livelihood. Nothing herein will be construed as prohibiting the Bank and/or the Company from pursuing any other remedies available to the Bank and/or the Company for such breach or threatened breach, including the recovery of damages from Executive.
(b) Executive recognizes and acknowledges that the knowledge of the business activities and plans for business activities of the Bank and affiliates thereof, as it may exist from time to time, is a valuable, special and unique asset of the business of the Bank. Executive will not, during or after the term of his employment, disclose any knowledge of the past, present, planned or considered business activities of the Bank or affiliates thereof to any person, firm, corporation, or other entity for any reason or purpose whatsoever (except for such disclosure as may be required to be provided to any federal banking agency with jurisdiction over the Bank or used by a competitor of the CompanyExecutive). Notwithstanding the foregoing, Executive shall may disclose any knowledge of banking, financial and/or economic principles, concepts or ideas which are not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less and exclusively derived from the business plans and activities of the outstanding equity interests Bank, and Executive may disclose any information regarding the Bank or the Company which is otherwise publicly available. In the event of any public entity. a breach or threatened breach by Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary Section, the Bank will be entitled to protect an injunction restraining Executive from disclosing, in whole or in part, the legitimate business interests knowledge of the Company. This noncompetition provision can only be revoked past, present, planned or modified by a writing signed by both Executive and the Chief Executive Officer considered business activities of the CompanyBank or affiliates thereof, as approved by the Boardor from rendering any services to any person, which specifically states an intent firm, corporation, other entity to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Thereforewhom such knowledge, in furtherance ofwhole or in part, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed has been disclosed or is threatened to be modified or reformed to restrict Executive’s competition with disclosed. Nothing herein will be construed as prohibiting the Company Bank from pursuing any other remedies available to the maximum extentBank for such breach or threatened breach, as to time, geography and business scope, which including the court shall find enforceable; provided however, in no event shall the provisions recovery of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationdamages from Executive.
Appears in 2 contracts
Sources: Employment Agreement (Roma Financial Corp), Employment Agreement (Roma Financial Corp)
Non-Competition. During Executive acknowledges that he has and, while employed, will acquire unique and valuable experience with respect to the Employment Period businesses, operations, plans and for an additional period of one (1) year following the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not to, directly or indirectly, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent strategies of the Company (which consent may be withheld in and its sole discretion), engage in any manner in subsidiaries. Executive hereby covenants and agrees that during the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date term of this Agreement and any period thereafter during which he is receiving payments pursuant to Subsections 7(b)(i)-(ii) and 7(c)(i)-(iv) hereof (but, in no event longer than two (2) years following Executive’s termination of employment), he will not directly or as indirectly compete with the business of the date of terminationCompany or its subsidiaries. For purposes of this Section 9Agreement, the term “Business” means compete with the acquisition, development, management, ownership, leasing and/or disposition business of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and its subsidiaries” shall include Executive’s participation in any operations whose primary business competes with any business now conducted by the Company or its subsidiaries, includingincluding the sale or rental of menswear (including formalwear), without limitationmen’s accessories or men’s shoes at retail, those involvingthe sale or rental of occupational uniforms or other corporate wear merchandise, employmentdry cleaning, compensationor any material line of business proposed to be conducted by the Company or one or more of its subsidiaries known to Executive and with respect to which Executive devoted time as part of his employment hereunder on behalf of the Company or one or more of its subsidiaries, whether such participation is individually or as an officer, director, joint venturer, agent or holder of an interest (except as a holder of a less than 1% interest in a publicly traded entity or mutual fund) of any individual, corporation, association, partnership, joint venture or other business entity so engaged; provided, however, that passive interests held by Executive in private companies through hedge funds and Confidential Information, and in order private equity investments shall not violate this Section 9(a) so long as Executive does not have any involvement with respect to protect the Company’s Confidential Information and other legitimate business interests and any companies which could reasonably be considered to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by be a competitor of the CompanyCompany or any of its subsidiaries (a “Competitor”), including consultation with the private equity firm, the hedge fund or any of the principals thereof, with respect to making an investment into a Competitor. Notwithstanding This non-competition covenant shall be applicable with respect to the foregoingUnited States, Canada, the United Kingdom and any other country in which Executive would be competing with the business of the Company or its subsidiaries as set forth in this Section 9(a). For the avoidance of doubt, Executive shall not be deemed to have violated violate this Section 9 solely 9(a) by reason providing services to a unit, division or subsidiary of his passive ownership of 10% an entity where such entity or less a subsidiary thereof, other than a subsidiary to which Executive is providing services, competes with a business of the outstanding equity interests of any public entity. Company or its subsidiaries so long as Executive hereby acknowledges that does not directly or indirectly provide services to the geographic boundariesunit, scope of prohibited activities and the time duration division or subsidiary of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate entity which competes with any business interests of the Company. This noncompetition provision can only be revoked Company or modified by a writing signed by both Executive one or more of its subsidiaries and does not provide services to the Chief Executive Officer entity or to any subsidiary thereof that does not complete with any business of the CompanyCompany where such services relate to, as approved by the Boardor benefit, which specifically states an intent to revoke any unit, division or modify this provision. Executive acknowledges subsidiary that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationso competes.
Appears in 2 contracts
Sources: Employment Agreement (Tailored Brands Inc), Employment Agreement (Mens Wearhouse Inc)
Non-Competition. During the Employment Period term of this Agreement and while Employee receives Severance Pay, or if longer, for an additional a period of one (1) year 12 months following the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not totermination; Employee shall not, directly or indirectly:
(a) Engage, either through and shall have no investment, involvement or other connection whatsoever, direct or indirect, with any form corporation, partnership, proprietorship, individual or other business entity that is engaged, in whole or in part, in any line of ownership business that is the same as, similar to or directly or indirectly in competition with the business of Employer, or its successors and assigns, as it is now, or as it may during Employee's employment be, conducted in North America ("Competing Entity"); provided that this provision shall not restrict the right of Employee to own less than one percent of the outstanding shares of capital stock in any company listed on a national or regional stock exchange, or whose stock is quoted on a NASDAQ market, regardless of the nature of the business.
(b) Be or become a shareholder, partner or other investor, or an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholderadviser or director or an agent (whether independent or otherwise) for any Competing Entity; provided that this provision shall not, partnerhowever, member or restrict the right of Employee to own less than one percent of the outstanding shares of capital stock in any other individual company listed on a national or representative capacity whatsoeverregional stock exchange, or whose stock is quoted on a NASDAQ market, regardless of the nature of the business.
(c) Solicit, either for his own benefit or for the benefit of any person or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with himself or on behalf of any Competing Entity, any "active customer of Employer" where an "active customer of Employer" is a person or entity who or which is or has been a customer of Employer at any time during the term of Employee's employment or during the two years preceding Employee's termination of employment.
(including himselfd) Induce or entityattempt to influence any employee of Employer to terminate employment, whether or not for compensationexcept in his capacity as an officer of Employer. Employee acknowledges that Employer has been conducting its business in North America, and that the restrictive covenants assumed by Employee pursuant to this Agreement are essential to the business of Employer and its goodwill.
Appears in 2 contracts
Sources: Employment Agreement (Manatron Inc), Employment Agreement (Manatron Inc)
Non-Competition. During the Employment Period and (a) Except as otherwise provided in this Agreement, for an additional a period of one five (15) year following years after the termination Contribution Closing Date, the Contributor Parties shall not, and shall cause each of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not totheir respective Subsidiaries to not, directly or indirectly, either through engage in, or acquire an equity interest in, or provide debt financing to any form of ownership or as an individualPerson who is engaged in, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Restricted Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where (the Company owns or leases more than $10 million “Restricted Territory”). Nothing in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event definition of Restricted Business shall prohibit or in any way restrict any ETP Entity from:
(i) acquiring or owning equity securities in Acquirer or otherwise entering into or exercising any rights of such information is provided ETP Entity pursuant to the ETP CRSA or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10acquiring or owning less than 5% or less of the outstanding voting power of any other publicly traded Person, including if such Person is a Restricted Business;
(ii) performing its obligations under the Transaction Agreements; or
(iii) acquiring the assets or capital stock or other equity interests of any public entity. Executive hereby acknowledges Person which is engaged in the Restricted Business (“Acquired Company”) if, in its last full fiscal year prior to such acquisition, the consolidated revenues of such Acquired Company from the Restricted Business in the Restricted Territory was less than twenty-five percent (25%) of the aggregate consolidated revenues of such Acquired Company; provided, however, that if an ETP Entity acquires an Acquired Company with consolidated revenues from the Restricted Business in the Restricted Territory greater than ten percent (10%) of the aggregate consolidated revenues of such Acquired Company, such ETP entity shall (A) provide Acquirer the exclusive opportunity, for a period of forty-five (45) days following the closing of such acquisition, to negotiate the purchase of such portion of such business that is engaged in the Restricted Business and (B) if such ETP Entity and Acquirer do not enter into an agreement with respect to Acquirer’s purchase of such portion of such business within such forty-five (45)-day period, divest such portion of such business within nine (9) months of the acquisition.
(iv) owning or operating Propane Group Assets retained by an ETP Entity in connection with the exercise of the ETP Retention Option in accordance with Section 5.29(b); provided, however, that such ETP Entity agrees to divest such Propane Group Assets within two (2) years of the Contribution Closing Date (or such lesser time that may be required pursuant to an order by a Governmental Authority under any Regulatory Law).
(b) The Contributor Parties agree that the duration and geographic boundaries, scope of prohibited activities the non-competition provision set forth in this Section 5.11 are reasonable. In the event that any court determines that the duration or geographic scope of the restrictions set forth in this Section 5.11, or both, is unreasonable and that such provision is to that extent unenforceable, the Parties agree that the provision shall remain in full force and effect for the greatest time duration period and in the greatest area that would not render it unenforceable. The Parties intend that this non-competition provision shall be deemed to be a series of separate covenants, one for each and every county of each and every state of the United States of America. Additionally, because of the difficulty of measuring economic losses to Acquirer as a result of a breach of this Section 5.11, and because of the immediate and irreparable damage that could be caused to Acquirer for which it may not have any other adequate remedy, the Contributor Parties agree that Acquirer may seek to enforce the provisions of this Section 9 are reasonable 5.11 by seeking to obtain injunctions, restraining orders and are no broader than are necessary other equitable actions pursuant to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensation9.4.
Appears in 2 contracts
Sources: Contribution and Redemption Agreement (Energy Transfer Partners, L.P.), Contribution and Redemption Agreement (Amerigas Partners Lp)
Non-Competition. During (a) The Executive acknowledges that the Employment Period special relationship of trust and confidence between him, the Bank, and its clients and customers creates a high risk and opportunity for an additional period the Executive to misappropriate the relationship and goodwill existing between the Bank and its clients and customers. The Executive further acknowledges and agrees that it is fair and reasonable for the Bank to take steps to protect itself from the risk of one (1) year following such misappropriation. The Executive further acknowledges that, at the termination outset of his employment by with the Company for Cause ( as described in Section 5a above) or Bank and/or throughout his employment with the voluntary termination of employment by Bank, the Executive will be provided with access to and informed of the Bank’s and the Holding Company’s Proprietary Information, which will enable him to benefit from the Bank’s and Holding Company’s goodwill and know-how.
(b) The Executive acknowledges that it would be inevitable in the performance of his duties as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not to, directly or indirectly, either through any form of ownership or as an individual, a director, officer, principal, agent, employee, employerinvestor, adviseragent or consultant of any person, consultantassociation, shareholderentity, partneror company which competes with the Bank or Holding Company, member or in any other individual which intends to or representative capacity whatsoevermay compete with the Bank or Holding Company, either for his own benefit to disclose and/or use the Bank’s and Holding Company’s Proprietary Information, as well as to misappropriate the Bank’s and Holding Company’s goodwill and know-how, to or for the benefit of any person such other person, association, entity, or entitycompany. The Executive also acknowledges that, in exchange for the execution of the non-solicitation restriction set forth in this Section 10, he has received substantial, valuable consideration. The Executive further acknowledges and agrees that this consideration constitutes fair and adequate consideration for the execution of the non-solicitation restriction set forth in this Section 10.
(c) Ancillary to the enforceable promises set forth in this Agreement, as well as to protect the vital interests described in this Section 10, the Executive agrees that during the Term of Employment (the “Non-Compete Period”), the Executive will not, without the prior written consent of the Company Bank’s full Board of Directors, directly or indirectly, alone or for his own account, or as owner, partner, investor, member, trustee, officer, director, shareholder, employee, consultant, distributor, advisor, representative or agent of any partnership, joint venture, corporation, trust, or other business organization or entity,
(which consent may be withheld in its sole discretioni) solicit the banking business of any current customers of the Bank;
(ii) acquire, charter, operate or enter into any franchise or other management agreement with any financial institution;
(iii) serve as an officer, director, employee, agent or consultant to any financial institution; or
(iv) establish or operate a branch or other office of a financial institution; for purposes of clauses (ii), engage in (iii) and (iv) above, such limitation shall apply to any manner in the Business financial institution that has a main office, branch or loan production office within a fifty (as defined below50) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as mile radius of the date of this Agreement or as main office of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationBank.
Appears in 2 contracts
Sources: Executive Employment Agreement (Gateway Pacific Bancorp), Executive Employment Agreement (Gateway Pacific Bancorp)
Non-Competition. During (a) Until the Employment Period and for an additional period second (2nd) anniversary of one (1) year following the date of termination of their respective employment with an Acquiring Party or one of their respective Affiliates, each Member agrees that he shall not, and shall cause his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees controlled Affiliates not to, directly or indirectly, either through (i) solicit, induce or cause any form Person with whom any Transferor Party had a business relationship with respect to the Business to reduce or terminate such Person’s business relationship with an Acquiring Party or any of ownership their respective Affiliates or their successors or assigns; and none of the Transferor Parties shall, directly or indirectly, approach any such Person for any such purpose, or authorize or assist in the taking of any of such actions for any such purpose or authorize or assist in the taking of any such actions by any Person, (ii) engage in any Restricted Activity, (iii) acquire, or own in any manner, any interest in any Person that engages in any Restricted Activity, or that engages in any business, activity or enterprise that competes with any aspect of any of Restricted Activity, or (iv) be interested in (whether as an individualowner, director, officer, principalpartner, member, manager, joint venturer, lender, shareholder, vendor, consultant, employee, advisor, agent, employeeindependent contractor or otherwise), employeror otherwise participate in the management or operation of, adviser, consultant, shareholder, partner, member any Person that engages in any Restricted Activity or in any business, activity or enterprise that competes with any Restricted Activity; provided, however, that this Section 5.8 shall not apply to the ownership of less than five percent (5%) of the outstanding stock of any Person who has a class of securities that is publicly traded.
(b) The Parties acknowledge that the acquisition of the Business and the goodwill of the Business is an essential component of the transactions contemplated hereby, and believe that the goodwill of Transferor and of the Business is a valuable asset and an essential inducement to the Acquiring Parties to enter into this Agreement and to consummate the transactions to be consummated pursuant to this Agreement. The Parties acknowledge that it could substantially dilute the value of such goodwill if any of the Transferor Parties violated any of the provisions of Section 5.8. In order to induce the Acquiring Parties to enter into this Agreement and as a condition precedent to the consummation of the transactions contemplated by this Agreement, each of the Transferor Parties agrees, insofar as he or it acts in its capacity as a selling equity holder, or a controlling person thereof, and not as an employee, a manager, a member of a management board or a consultant, to accept and be bound by the restrictions as set forth in Section 5.8(a). In addition, the Parties acknowledge and agree that the provisions of Section 5.8(a) and the period of time, geographic area and scope and type of restrictions on its activities set forth in such Section, are reasonable and necessary for the protection of the Acquiring Parties, which are paying substantial consideration and other individual benefits to the Transferor Parties in consideration for the covenants of the Transferor Parties hereunder.
(c) If any provision contained in any of Section 5.8(a) shall be determined by any court or representative capacity whatsoeverother tribunal of competent jurisdiction to be invalid or unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of its being too extensive in any other respect, either (i) such provision shall be interpreted to extend over the maximum period of time for his own benefit which it may be enforceable and/or over the maximum geographical area as to which it may be enforceable and/or to the maximum extent in all other respects as to which it may be enforceable, all as determined by such court or other tribunal making such determination, and (ii) in its reduced form, such provision shall then be enforceable, but such reduced form of provision shall only apply with respect to the operation of such provision in the particular jurisdiction in or for which such adjudication is made. It is the benefit of any person or entity, without the prior written consent intention of the Company Parties that the provisions of Section 5.8(a) shall be enforceable to the maximum extent permitted by Applicable Law.
(d) The Parties acknowledge and agree that any breach or threatened breach of the covenants or other provisions contained in Section 5.8(a) may cause the Acquiring Parties material and irreparable damage, the exact amount of which consent may will be withheld difficult to ascertain, and that the remedies at law for any such breach will be inadequate. Accordingly, the Acquiring Parties shall, in its sole discretionaddition to all other available rights and remedies (including, but not limited to, seeking such damages as it can show it has sustained by reason of such breach and recovery of costs and expenses including, but not limited to, attorneys’ fees and expenses), engage in any manner in the Business be entitled to seek specific performance and injunctive relief (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and a temporary and/or permanent restraining order and/or a permanent injunction) in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests respect of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked breach or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms threatened breach of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified such covenants or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationprovisions.
Appears in 2 contracts
Sources: Asset Contribution Agreement (SFX Entertainment, INC), Asset Contribution Agreement (SFX Entertainment, INC)
Non-Competition. During (a) Upon any termination of Executive's employment hereunder, other than a termination, (whether voluntary or involuntary) in connection with a Change in Control, as a result of which the Employment Period and Company is paying Executive benefits under Section 6 of this Agreement, Executive agrees not to compete with the Association and/or the Company for an additional a period of one (1) year following such termination within twenty-five (25) miles of any existing branch of the termination Association or any subsidiary of his employment the Company or within twenty-five (25) miles of any office for which the Association, the Company or a Association subsidiary of the Company has filed an application for regulatory approval to establish an office, determined as of the effective date of such termination, except as agreed to pursuant to a resolution duly adopted by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Board. Executive (as described in Section 5c above) (the “Noncompetition Term”)agrees that during such period and within said area, cities, towns and counties, Executive agrees shall not towork for or advise, consult or otherwise serve with, directly or indirectly, either through any form entity whose business materially competes with the depository, lending or other business activities of ownership or as an individualthe Association and/or the Company. The parties hereto, directorrecognizing that irreparable injury will result to the Association and/or the Company, officerits business and property in the event of Executive's breach of this Subsection 11(a) agree that in the event of any such breach by Executive, principalthe Association and/or the Company will be entitled, agent, employee, employer, adviser, consultant, shareholder, partner, member or in addition to any other individual remedies and damages available, to an injunction to restrain the violation hereof by Executive, Executive's partners, agents, servants, employers, employees and all persons acting for or representative capacity whatsoeverwith Executive. Executive represents and admits that Executive's experience and capabilities are such that Executive can obtain employment in a business engaged in other lines and/or of a different nature than the Association and/or the Company, either and that the enforcement of a remedy by way of injunction will not prevent Executive from earning a livelihood. Nothing herein will be construed as prohibiting the Association and/or the Company from pursuing any other remedies available to the Association and/or the Company for his own benefit such breach or threatened breach, including the recovery of damages from Executive.
(b) Executive recognizes and acknowledges that the knowledge of the business activities and plans for the benefit of any person or entity, without the prior written consent business activities of the Company (which consent and affiliates thereof, as it may be withheld in its sole discretion)exist from time to time, engage in any manner in the Business (as defined below) in the metropolitan areas of Houstonis a valuable, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross special and unique asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Executive will not, during or after the term of his employment, disclose any knowledge of the past, present, planned or considered business activities of the Company or affiliates thereof to any person, firm, corporation, or other entity for any reason or purpose whatsoever (except for such disclosure as may be required to be provided to any federal banking agency with jurisdiction over the Company or Executive). Notwithstanding the foregoing, Executive shall may disclose any knowledge of banking, financial and/or economic principles, concepts or ideas which are not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less and exclusively derived from the business plans and activities of the outstanding equity interests Company, and Executive may disclose any information regarding the Association or the Company which is otherwise publicly available. In the event of any public entity. a breach or threatened breach by the Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and will be entitled to an injunction restraining Executive agree that from disclosing, in whole or in part, the event a court should decline to enforce any terms of any knowledge of the provisions past, present, planned or considered business activities of this Section 9the Company or affiliates thereof, that this Section 9 shall be deemed or from rendering any services to any person, firm, corporation, other entity to whom such knowledge, in whole or in part, has been disclosed or is threatened to be modified or reformed to restrict Executive’s competition with disclosed. Nothing herein will be construed as prohibiting the Company from pursuing any other remedies available to the maximum extentCompany for such breach or threatened breach, as to time, geography and business scope, which including the court shall find enforceable; provided however, in no event shall the provisions recovery of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationdamages from Executive.
Appears in 2 contracts
Sources: Employment Agreement (Atlantic Liberty Financial Corp), Employment Agreement (Atlantic Liberty Financial Corp)
Non-Competition. During (i) Unless the Employment Period Company waives or limits the obligation in accordance with Section 9(b)(ii), you agree that during employment and for an additional period the longest of one (1) year 12 months following the termination cessation of his employment for any reason not covered by the Company for Cause ( as described in Section 5a above6(b) or the voluntary termination of employment by the Executive (as described in 6(c), 18 months if Section 5c above6(b) applies, and 24 months if Section 6(c) applies (the “Noncompetition TermNoncompete Period”), Executive agrees you will not to, directly or indirectly, either through any form of ownership alone or as an individuala partner, officer, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member shareholder or in employee of any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person firm or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage in any manner commercial activity in competition with any part of the Business (Company’s business as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets conducted as of the date of this Agreement such termination of employment or as with any part of the date Company’s contemplated business with respect to which you have confidential information. For purposes of terminationthis clause (i), “shareholder” does not include beneficial ownership of less than 5% of the combined voting power of all issued and outstanding voting securities of a publicly held corporation whose stock is traded on a major stock exchange. Also for purposes of this clause (i), “the Company’s business” includes business conducted by the Company, its subsidiaries, or any partnership or joint venture in which the Company directly or indirectly has ownership of not less than one third of the voting equity. The Noncompete Period will be further extended by any period of time during which you are in violation of Section 9(b). For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration competitors of the numerous mutual promises Company currently include but are not limited to GfK AG, Integrated Media Measurement, Inc., The ▇▇▇▇▇▇▇ Company B.V., ▇▇▇▇▇▇ ▇▇▇▇▇▇ Sofres PLC, and agreements contained in this Agreement between WPP PLC.
(ii) At its sole option the Company may, by written notice to you at any time within the Noncompete Period, waive or limit the time and/or geographic area in which you cannot engage in competitive activity.
(iii) During the Noncompete Period, before accepting employment with or agreeing to provide consulting services to, any firm or entity that offers competitive products or services, you must give 30 days’ prior written notice to the Company. Such written notice must be sent by certified mail, return receipt requested (attention: Office of the Chief Legal Officer with a required copy to the Chair of Compensation Committee), must describe the firm or entity and Executive, including, without limitation, those involving, employment, compensationthe employment or consulting services to be rendered to the firm or entity, and Confidential Informationmust include a copy of the written offer of employment or engagement of consulting services. The Company must respond or object to such notice within 30 days after receipt, and in order to protect the absence of a response will constitute acquiescence or waiver of the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of rights under this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensation.
Appears in 2 contracts
Sources: Executive Employment Agreement (Arbitron Inc), Executive Employment Agreement (Arbitron Inc)
Non-Competition. During Executive hereby acknowledges and agrees that, during the Employment Period course of employment, Executive has become familiar with and involved in all aspects of the business and operations of the Bank. Executive hereby covenants and agrees that for an additional period of one four (14) year following years after the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) Effective Time (the “Noncompetition TermRestricted Period”), Executive agrees shall not, without the prior approval of a majority of the Bank’s board of directors (Executive not toparticipating), directly or indirectly, either through in any form of ownership or capacity (whether as an individuala proprietor, owner, agent, officer, director, officershareholder, organizer, partner, principal, agentmanager, member, employee, employercontractor, adviserconsultant or otherwise) own, consultantmanage or control or participate in the ownership, shareholdermanagement or control, partneror perform services that are the same as or substantially to those services provided by Executive to the Bank Entities twelve (12) months prior to the cessation of Executive’s employment by the Bank Entities to, member any Competitive Business or to any Person that is attempting to form or acquire a Competitive Business if such Competitive Business operates, or is planning to operate, any office, branch or other facility (in any other individual case, a “Branch”) that is (or representative capacity whatsoever, either for his own benefit is proposed to be) located within a fifty (50) mile radius of the Bank Entities’ headquarters or for the benefit within a twenty-five (25) mile radius of any person or entity, without the prior written consent Branch office of the Company Bank Entities that is in existence immediately prior to the cessation of Executive’s employment by the Bank Entities. Notwithstanding any provision hereof to the contrary, this Section 7.1 does not restrict Executive’s right to (which consent may be withheld in its sole discretion), engage in a) own or acquire securities of any manner in entity that files periodic reports with the Business (as defined belowSecurities and Exchange Commission under Section 13 or 15(d) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date Securities Exchange Act of this Agreement or 1934, as of amended (the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees Exchange Act”); provided that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive total ownership of 10% or constitutes less than two percent (2%) of the outstanding equity interests securities of such entity; (b) to own, or during the Restricted Period to maintain ownership of (but not to acquire ownership of), passive investments in securities of any public entity. Executive hereby acknowledges entity that does not file periodic reports with the geographic boundaries, scope of prohibited activities Securities and the time duration Exchange Commission under Section 13 or 15(d) of the provisions of this Section 9 are reasonable and are no broader Exchange Act; provided that his total ownership constitutes less than are necessary to protect the legitimate business interests five percent (5%) of the outstanding securities of such company or (c) to serve as a director of Westminster American Insurance Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensation.
Appears in 2 contracts
Sources: Termination Agreement (Delmar Bancorp), Termination Agreement
Non-Competition. During 10.1 The Executive shall not compete with the Employment Period Corporation, the Parent or any of their Affiliates, directly or indirectly. He shall not participate in any capacity whatsoever in a business that would directly or indirectly compete with the Corporation, the Parent or any of their Affiliates, including, without limitation, as an executive, director, officer, employer, principal, agent, fiduciary, administrator of another's property, associate, independent contractor, franchisor, franchisee, distributor or consultant unless such participation is fully disclosed to the Board and approved in writing in advance. In addition, the Executive shall not have any interest whatsoever in such an enterprise, including, without limitation, as owner, shareholder, partner, limited partner, lender or silent partner. This noncompetition covenant is limited as follows:
(a) As to the time period, to the duration of the Executive's employment and for an additional a period of one (1) year years following the date of termination of his employment employment;
(b) As to the geographical area, the territory in which a specific product had been actively exploited by the Company for Cause ( as described in Section 5a aboveCorporation, the Parent and/or their Affiliates during the period of Executive’s employment;
(c) As to the nature of the activities, to duties or the voluntary termination of employment activities which are identical or substantially similar to those performed or carried on by the Executive at or during Executive’s employment.
10.2 The foregoing stipulation shall nevertheless not prevent the Executive from buying or holding shares or other securities of a corporation or entity other than the Corporation or the Parent whose securities are publicly traded on a recognized stock exchange where the securities so held by the Executive do not represent more than five percent (as described 5%) of the voting shares of such other corporation or entity and do not allow for its control.
10.3 The Executive also undertakes, for the same period and in Section 5c above) (respect of the “Noncompetition Term”same territory referred to hereinabove in subsections 10.1(a), Executive agrees (b) and (c), not toto solicit clients or do anything whatsoever to induce or to lead any person to end, directly or indirectly, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member in whole or in part, business relations with the Corporation, the Parent or any other individual or representative capacity whatsoeverof their Affiliates.
10.4 The Executive also undertakes, either for his own benefit or for the benefit of any person or entity, without the prior written consent same period and in respect of the Company (which consent may be withheld same territory referred to hereinabove in its sole discretionsubsections 10.1(a), engage in any manner (b) and (c), not to induce, attempt to induce or otherwise interfere in the Business (as defined below) in relations which the metropolitan areas of HoustonCorporation, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas the Parent or any of their Affiliates has with their distributors, suppliers, representatives, agents and other metropolitan area parties with whom any of them deals.
10.5 The Executive also undertakes, for the same period and in the United States where the Company owns or leases more than $10 million in gross asset value of assets as respect of the date of this Agreement same territory referred to in subsections 10.1(a), (b) and (c), not to induce, attempt to induce or as otherwise solicit the personnel of the date Corporation, the Parent or their Affiliates to leave their employment with the Corporation, the Parent or any of termination. For purposes of this Section 9, “Business” means their Affiliates nor to hire the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration personnel of the numerous mutual promises and agreements contained Corporation, the Parent or any of their Affiliates for any enterprise in this Agreement between which the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. has an interest.
10.6 The Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 10 are reasonable limited as to the time period, the geographic area and are no broader than are the nature of the activities to what the parties deem necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Corporation, the Parent and their Affiliates, while allowing the Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for earn his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained living.
10.7 Nothing in this Section 9 hereof are fair and reasonable in light of all 10 shall operate to reduce or extinguish the obligations of the facts and circumstances Executive arising at law or under this contract which survive at the termination of the relationship between Executive and the Company; provided however, Executive and the Company are aware that this Agreement in certain circumstances courts have refused to enforce certain terms reason of agreements not to compete. Thereforetheir nature and, in furtherance ofparticular, and not in derogation of without limiting the provisions of this Section 9foregoing, the Company Executive's duty of loyalty and Executive agree that in the event a court should decline obligation to enforce any terms of any of the provisions of this Section 9act faithfully, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography honestly and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationethically.
Appears in 2 contracts
Sources: Executive Employment Agreement (Zomedica Pharmaceuticals Corp.), Executive Employment Agreement (Zomedica Pharmaceuticals Corp.)
Non-Competition. A. Executive acknowledges and recognizes the highly competitive nature of the busi-ness of the Company and that he provides essential and unique services to the Company. Accordingly, despite that the terms contained herein may limit Executive's ability to engage in certain business pursuits during the Restricted Period (as defined below), Executive hereby agrees as follows: During the Employment Period Term and for the period ending three years following the termination of the Term and Executive's employment with the Company for any reason other than an additional period of involuntary termination without Cause or a voluntary resignation by Executive, each within one (1) year following the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination a Change of employment by the Executive Control (as described in Section 5c abovedefined herein) (the “Noncompetition Term”), Executive agrees not to, directly or indirectly, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent of the Company (the "Restricted Period"), Executive will not, whether on Executive's own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever ("Person"): (I) become an officer, director, joint venturer, employee, agent, consultant or five percent (5%) or more shareholder (either directly or indirectly) of, or promote, provide services to or assist in any way, any person or entity which consent may be withheld directly competes with any business of the Company or any of its affiliates in its sole discretion)which the Company or such affiliates are engaged as of the date of Executive's termination of employment with the Company, and which constitutes, on a consolidated basis, at least ten percent (10%) of the Company's revenues (hereinafter, engage in a "Competing Business"). Executive acknowledges that such restriction may limit his ability to engage in certain business pursuits during the Restricted Period, but also acknowledges that the Company has provided significantly higher remuneration and benefits from the Company, as provided herein, than that which he otherwise would have received to adequately compensate him for such restriction. Executive has had an opportunity to consult with an attorney with respect to these restrictions; (II) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this Agreement) between the Company and customers, clients, suppliers, partners, members or investors of the Company.
B. It is expressly understood and agreed that although Executive and the Company consider the restrictions contained in this Paragraph 10 to be reasonable, if a final determination is made by an arbitrator or arbitrators, or by a court of competent jurisdiction that the time or territory or any manner other restriction contained in this Agreement is an unenforceable restriction against Executive, the Business (provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as defined below) in the metropolitan areas of Houston, Ato such maximum time and terri-tory and to such maximum extent as such court may judicially d▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio▇r indicate to be enforceable. Alternatively, Texas or if any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value court of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or competent jurisdiction finds that any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements restric-tion contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensationis unenforceable, and Confidential Informationsuch restriction cannot be amended so as to make it enforceable, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive finding shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of affect the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms enforceability of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those other restrictions contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensation.
Appears in 2 contracts
Sources: Employment Agreement (Orbit International Corp), Employment Agreement (Orbit International Corp)
Non-Competition. During (a) From the Employment Period and for an additional period Closing Date until the fourth anniversary of one (1) year following the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) Closing Date (the “Noncompetition TermRestricted Period”), Executive agrees without Buyer’s consent, Parent shall not, and shall cause each of its Affiliates (Parent and its Affiliates, the “Restricted Party”) not to, directly or indirectlyindirectly (including by means of management, advisory, operating, or similar agreements or arrangements or by any record or beneficial equity interest, either through any form of ownership or as an individual, director, officer, a principal, agenttrustee, employee, employer, adviser, consultant, shareholderstockholder, partner, member joint venture or otherwise, in any Person), engage in a business that competes with the Business, for their own account or for any other Person, in any country or other geographic location in which any Rodeo Entity operates the Business or otherwise had sales immediately prior to the Closing or any other country or geographic location in which any Rodeo Entity planned to operate the Business as of the Closing Date (the “Restricted Business”); provided, however, that nothing in this Agreement or in the definition of Restricted Business shall prohibit or in any other individual way restrict the Restricted Party’s ability to:
(i) engage in the Restricted Business to the extent necessary to perform its duties under this Agreement and the Ancillary Agreements;
(ii) make or representative capacity whatsoever, either maintain passive investments of less than five percent of the outstanding equity securities in any entity engaged in the Restricted Businesses listed for his trading on any recognized securities exchange or in the over-the-counter markets;
(iii) own benefit or for the benefit an equity interest of any other Person engaged in the Restricted Business acquired as a creditor in bankruptcy other than by a voluntary investment decision; or
(iv) acquire the assets or capital stock or other equity interests of any other Person engaged in the Restricted Business, provided, however, that the net sales attributable to the Restricted Business conducted by such person accounts for less than 25% of the net sales of such person for its most recently completed fiscal year.
(b) The Parties agree that this covenant is personal to Buyer and Buyer may not assign or entityotherwise transfer this covenant, in whole or in part, to any Person other than to other Affiliates of Buyer. During the Restricted Period, Parent shall not, and shall cause each of its Subsidiaries not to, without the prior written consent of the Company (which consent may be withheld in its sole discretion)Buyer, engage directly or indirectly, induce or attempt to induce any customer, reseller, retailer, distributor, supplier, licensee or other Person to cease doing business with Buyer or any Rodeo Entity or in any manner way interfere with the relationship between any such customer, reseller, retailer, distributor, supplier, licensee or other Person and Buyer, Rodeo or such Rodeo Entity.
(c) Parent agrees that any remedy at law for any breach by it or its Affiliates of Section 9.6(a) or (b) would be inadequate, and Buyer shall be entitled to injunctive or other equitable relief in the Business (as defined below) such case in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or addition to any other metropolitan area right Buyer may have, whether at law or in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of terminationequity. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees Each party intends that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect 9.6 be enforced under the legitimate business interests laws applied in each jurisdiction in which enforcement is sought. If any provision of the Company. This noncompetition provision can only this Section 9.6 shall be revoked or modified held by a writing signed by both Executive and the Chief Executive Officer court of the Companycompetent jurisdiction to be invalid or unenforceable, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light 9.6 shall be amended to revise the scope of all of the facts and circumstances of the relationship between Executive and the Company; provided howeversuch provision to make it enforceable, Executive and the Company are aware that in certain circumstances courts have refused if possible, or, if not possible, to enforce certain terms of agreements not to compete. Thereforedelete such provision, in furtherance ofeither case, and not in derogation of without affecting the other or remaining provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms 9.6 or this Agreement. Any invalidity or unenforceability of any of the provisions provision of this Section 9, 9.6 in a jurisdiction will not affect the validity or enforceability of that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, provision in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationother jurisdiction.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Joy Global Inc), Stock Purchase Agreement (Cameron International Corp)
Non-Competition. During The Practice hereby recognizes, acknowledges, and avers that Professional Business Manager will incur substantial costs in providing the Employment Period equipment, support services, personnel, management, administration, and other items and services that are the subject matter of this Professional Business Management Agreement and that in the process of providing services under this Professional Business Management Agreement, the Practice will be privy to financial and Confidential Information, to which the Practice would not otherwise be exposed. The Parties also recognize that the services to be provided by Professional Business Manager will be feasible only if the Practice operates an active practice to which the Professionals associated with the Practice devote their full time and attention. The Practice agrees, acknowledges, and avers that the non-competition covenants described hereunder are necessary for the protection of Professional Business Manager, and that Professional Business Manager would not have entered into this Professional Business Management Agreement without the following covenants.
(a) Except as specifically agreed to by Professional Business Manager in writing, the Practice covenants and agrees that during the Term of this Professional Business Management Agreement and for an additional a period of one (1) year following from the date this Professional Business Management Agreement is terminated other than if terminated by the Practice for cause, or expires, the Practice shall not directly or indirectly own (excluding ownership of less than one percent (1%) of the equity of any publicly traded entity and excluding ownership of the common stock of Professional Business Manager), manage, operate, control, contract with, lend funds to, lend its name to, maintain any interest whatsoever in, or be employed by, any enterprise (i) having to do with the provision, distribution, promotion, or advertising of any type of management or administrative services or products to third parties in competition with Professional Business Manager, within a 10 mile radius of any Office; and/or (ii) offering any type of service(s) or product(s) to third parties substantially similar to those offered by Professional Business Manager to the Practice in Competition with Professional Business Manager within a 10 mile radius of any Office. Notwithstanding the above restriction, nothing herein shall prohibit (i) the Practice or any of its Shareholders from providing management and administrative services to this or their own optometry practice after the termination of his employment by this Professional Business Management Agreement; (ii) the Company Practice or its Shareholders from contracting with a third-party manager to provide administrative or management services for Cause ( as described in Section 5a above) its or the voluntary their professional eye care practices after termination of employment by the Executive this Professional Business Management Agreement; (as described in Section 5c aboveiii) (the “Noncompetition Term”), Executive agrees not to, directly or indirectly, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions Practice’s Shareholders from providing management and administrative services to their own optometry practices after the termination of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition their employment relationship with the Company Practice, and (iv) such Shareholders from contracting with a third-party manager to provide administrative or management services for their professional eye care practices after the maximum extent, as to time, geography and business scope, which termination of their employment relationship with the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationPractice.
Appears in 2 contracts
Sources: Professional Business Management Agreement, Professional Business Management Agreement (Eyemasters Inc)
Non-Competition. During (a) Upon any termination of Executive's employment hereunder, other than a termination, (whether voluntary or involuntary) in connection with a Change in Control, as a result of which the Employment Period and Bank is paying Executive benefits under Section 6 of this Agreement, Executive agrees not to compete with the Bank and/or the Company for an additional a period of one (1) year following such termination within twenty-five (25) miles of any existing branch of the termination Bank or any subsidiary of his employment the Company or within twenty-five (25) miles of any office for which the Bank, the Company or a Bank subsidiary of the Company has filed an application for regulatory approval to establish an office, determined as of the effective date of such termination, except as agreed to pursuant to a resolution duly adopted by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Board. Executive (as described in Section 5c above) (the “Noncompetition Term”)agrees that during such period and within said area, cities, towns and counties, Executive agrees shall not towork for or advise, consult or otherwise serve with, directly or indirectly, either through any form of ownership entity whose business materially competes with the depository, lending or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent business activities of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing Bank and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information . The parties hereto, recognizing that irreparable injury will result to the Bank and/or the Company, its business and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur property in the event of Executive's breach of this Subsection 11(a) agree that in the event of any such information breach by Executive, the Bank and/or the Company will be entitled, in addition to any other remedies and damages available, to an injunction to restrain the violation hereof by Executive, Executive's partners, agents, servants, employers, employees and all persons acting for or with Executive. Executive represents and admits that Executive's experience and capabilities are such that Executive can obtain employment in a business engaged in other lines and/or of a different nature than the Bank and/or the Company, and that the enforcement of a remedy by way of injunction will not prevent Executive from earning a livelihood. Nothing herein will be construed as prohibiting the Bank and/or the Company from pursuing any other remedies available to the Bank and/or the Company for such breach or threatened breach, including the recovery of damages from Executive.
(b) Executive recognizes and acknowledges that the knowledge of the business activities and plans for business activities of the Bank and affiliates thereof, as it may exist from time to time, is a valuable, special and unique asset of the business of the Bank. Executive will not, during or after the term of his employment, disclose any knowledge of the past, present, planned or considered business activities of the Bank or affiliates thereof to any person, firm, corporation, or other entity for any reason or purpose whatsoever (except for such disclosure as may be required to be provided to any federal banking agency with jurisdiction over the Bank or used by a competitor of the CompanyExecutive). Notwithstanding the foregoing, Executive shall may disclose any knowledge of banking, financial and/or economic principles, concepts or ideas which are not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less and exclusively derived from the business plans and activities of the outstanding equity interests Bank, and Executive may disclose any information regarding the Bank or the Company which is otherwise publicly available. In the event of any public entity. a breach or threatened breach by Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary Section, the Bank will be entitled to protect an injunction restraining Executive from disclosing, in whole or in part, the legitimate business interests knowledge of the Company. This noncompetition provision can only be revoked past, present, planned or modified by a writing signed by both Executive and the Chief Executive Officer considered business activities of the CompanyBank or affiliates thereof, as approved by the Boardor from rendering any services to any person, which specifically states an intent firm, corporation, other entity to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Thereforewhom such knowledge, in furtherance ofwhole or in part, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed has been disclosed or is threatened to be modified or reformed to restrict Executive’s competition with disclosed. Nothing herein will be construed as prohibiting the Company Bank from pursuing any other remedies available to the maximum extentBank for such breach or threatened breach, as to time, geography and business scope, which including the court shall find enforceable; provided however, in no event shall the provisions recovery of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationdamages from Executive.
Appears in 2 contracts
Sources: Employment Agreement (Brooklyn Federal Bancorp, Inc.), Employment Agreement (Brooklyn Federal Bancorp, Inc.)
Non-Competition. During (i) Except as set forth on Schedule 9.4, during the Employment Period Non-Compete Period, the Sellers Parties will not, and for an additional period of one (1) year following the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees will cause their respective Affiliates not to, directly or indirectly, either through any form of ownership (A) enter into, engage in, consult, manage or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or otherwise participate in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit operation of any person or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage in any manner in business that competes with the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets currently conducted as of the date Closing Date) within the Restricted Territory, (B) solicit Clients, Prospective Clients, business, patronage or orders for, or sell, any products or services in competition with, or for any business, wherever located, that competes with the Business within the Restricted Territory; (C) divert, entice or otherwise take away any Clients, Prospective Clients, business, patronage or orders of this Agreement or the Business (as currently conducted as of the date Closing Date) within the Restricted Territory, or attempt to do so; or (D) promote or assist, financially or otherwise, any Person engaged in any business within the Restricted Territory that competes with the Business (as currently conducted as of terminationthe Closing Date). Nothing contained in this Section 9.4 will prohibit the Shareholders from acquiring or holding at any one time a passive investment of less than 5% of the outstanding shares of capital stock of any publicly traded corporation that may compete with Buyers within the Restricted Territory. For the purposes of this Section 99.4, the “BusinessSeller” means will also include any and all of its direct and indirect subsidiaries, parents, Affiliates, or related companies of Sellers from time to time.
(ii) Seller Parties will be released from the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained restrictions set forth in this Section 9 are being given in consideration 9.4(a) if at any time during the Non-Compete Period Buyers withdraw from or wind up or publicly announce that they are, or will be, withdrawing from or winding up all of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate material lines of business interests and to reduce the likelihood of irreparable damage which would occur performed in the event such information is provided to or used by a competitor Leadership Consulting Business of Buyers.
(iii) A Continuing Shareholder will be released from the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained restrictions set forth in this Section 9 hereof are fair and reasonable 9.4(a) to the extent (but only to the extent) such Shareholder is terminated without Cause (as defined in light such Shareholder’s employment agreement with Buyers or their Affiliates) or resigns for Good Reason (as defined in such Shareholder’s employment agreement with Buyer or their Affiliates) and, at the time of all such termination or resignation, no other partners of Buyers or their Affiliates offer services of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationsame nature.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Heidrick & Struggles International Inc)
Non-Competition. During Because of the Employment Period and for an additional period of one (1) year following the termination of his employment by the Company for Cause ( Employer Group’s legitimate business interest as described in Section 5a above) this Agreement and the good and valuable consideration offered to the Optionee, the receipt and sufficiency of which is acknowledged, during the term of Optionee’s employment and for the one year beginning on the last day of the Optionee’s employment with the Company, whether terminated for any reason or no reason, by the Optionee or the voluntary termination of employment by the Executive (as described in Section 5c above) Company, (the “Noncompetition TermRestricted Period”), Executive the Optionee agrees and covenants not toto engage in Prohibited Activity (as defined below) within the United States, or the geographical regions for which the Optionee provides services during the course of employment, whichever is larger.
(i) For purposes of this non-compete clause, “Prohibited Activity” is activity in which the Optionee contributes the Optionee’s knowledge, directly or indirectly, either through any form of ownership in whole or in part, as an individualassociate, employer, owner, operator, manager, advisor, consultant, contractor, agent, partner, director, stockholder, officer, principalvolunteer, agentintern, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area similar capacity to an entity engaged in the United States where same or similar business as the Company owns Employer Group, including those engaged in the business of manufacturing and distribution of doors, windows, trim, and other building supplies manufactured or leases more distributed by the Employer Group. Prohibited Activity also includes activity that may require or inevitably require disclosure of trade secrets, proprietary information, or Confidential Information.
(ii) Nothing herein shall prohibit the Optionee from purchasing or owning less than $10 million in gross asset value of assets as five percent (5%) of the date publicly traded securities of this Agreement any corporation, provided that such ownership represents a passive investment and that the Optionee is not a controlling person of, or as a member of a group that controls, such corporation.
(iii) This Section 7(c) does not, in any way, restrict or impede the date of termination. For purposes of this Section 9, “Business” means Optionee from exercising protected rights to the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees extent that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall rights cannot be deemed to have violated this Section 9 solely waived by reason agreement or from complying with any applicable law or regulation or a valid order of his passive ownership a court of 10% competent jurisdiction or less of the outstanding equity interests of any public entity. Executive hereby acknowledges an authorized government agency, provided that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved such compliance does not exceed that required by the Boardlaw, which specifically states an intent to revoke regulation, or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationorder.
Appears in 2 contracts
Sources: Nonqualified Stock Option Agreement (JELD-WEN Holding, Inc.), Nonqualified Stock Option Agreement (JELD-WEN Holding, Inc.)
Non-Competition. During the Employment Period and for an additional period of one (1) year following the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not to, directly or indirectly, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby Shareholder acknowledges that the geographic boundariesConfidential Information in the possession of any Shareholder Party would enable such Shareholder Party to establish goodwill with the patients, scope customers and potential customers, suppliers, and sources or potential sources of prohibited activities referrals who provide products and services on behalf of the Companies and each of the Companies’ Subsidiaries or who receive services from the Companies or the Companies’ Subsidiaries and that the Confidential Information constitutes a valuable asset of the Companies and the time duration Companies’ Subsidiaries. Shareholder further acknowledges that it has developed relationships with certain of the Companies’ and the Companies’ Subsidiaries’ patients and potential patients, suppliers, contractors or potential contractors, consultants or potential consultants, and sources or potential sources of referrals. Accordingly, BioScrip and Shareholder will (and shall cause each Shareholder Party to) comply with the provisions of this Section 9 are reasonable 12.4.2 for the period beginning on the Effective Date and are ending on the third (3rd) anniversary thereof. During such three-year period, BioScrip and Shareholder agree that no broader Shareholder Party shall directly or indirectly engage in, render services to or become interested in any manner, as manager, employee, officer, consultant, or partner, or through ownership (other than are necessary to protect the legitimate business interests holding less than two percent (2%) of the Companyoutstanding equity securities of a Person having securities that are listed for trading on a national securities exchange), or otherwise, either alone or in association with others, in any Person that solely provides services that are similar to or competitive with the services provided by the Companies or the Companies’ Subsidiaries, which restrictions shall be applicable within: (i) the Mississippi counties set forth on Exhibit 12.4.2; (ii) the Tennessee counties set forth on Exhibit 12.4.2; (iii) the Kentucky counties set forth on Exhibit 12.4.2; (iv) the Nebraska counties set forth on Exhibit 12.4.2; and (v) the Illinois counties set forth on Exhibit 12.4.2 (collectively, the “Restricted Territory”). This noncompetition provision can only be revoked or modified by For the avoidance of doubt and notwithstanding anything herein to the contrary, nothing herein shall prohibit a writing signed by both Executive Shareholder Party from (i) acquiring and thereafter operating a business (including, but not limited to, a predominantly home infusion business) which includes as a component a home health, hospice, and/or private duty business which operates within the Chief Executive Officer Restricted Territory, provided that such home health, hospice, and/or private duty business either (a) accounts for less than 10% of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all revenue of the facts and circumstances of the relationship between Executive and the Company; provided howeveracquired business, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Thereforeor (b) is divested as soon as commercially practicable, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, but in no event shall later than twelve (12) months following the provisions of acquisition; (ii) providing non-Medicare certified nursing services within the Restricted Territory in connection with the Shareholder Parties’ businesses that are not being sold under this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees Agreement (including, but not limited to, the Shareholder Parties’ home infusion, medical supplies, and transitional care businesses), or (iii) jointly marketing the Shareholder Parties’ businesses that are not being sold under this Agreement (including, but not limited to, the Shareholder Parties’ home infusion, medical supplies, and transitional care businesses) or otherwise collaborating or joint venturing with an unrelated provider or supplier that operates, or has an Affiliate which operates, a home health, hospice, and/or private duty business (including, but not limited to, health systems); provided that in conjunction with any such collaboration or joint venture the Shareholder Parties’ may not provide home health, hospice, and/or private duty services within the Restricted Territory during the Noncompetition TermRestricted Period, he shall immediately notify but the Company in writing of any employment, work collaboration or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationjoint venture may provide such services.
Appears in 2 contracts
Sources: Stock Purchase Agreement (LHC Group, Inc), Stock Purchase Agreement (BioScrip, Inc.)
Non-Competition. During (a) From the Employment Period and for an additional period Closing Date until the fourth anniversary of one (1) year following the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) Closing Date (the “Noncompetition TermRestricted Period”), Executive agrees without Buyer’s consent, Seller shall not, and shall cause each of its Subsidiaries (Seller and its Subsidiaries, the “Restricted Party”) not to, directly or indirectlyindirectly (including by means of management, advisory, operating, or similar agreements or arrangements or by any record or beneficial equity interest, either through any form of ownership or as an individual, director, officer, a principal, agenttrustee, employee, employer, adviser, consultant, shareholderstockholder, partner, member joint venture or otherwise, in any Person), engage in a business that competes with the Business, for their own account or for any other Person, in any country or other geographic location in which the Longhorn Entities operate the Business or otherwise had sales immediately prior to the Closing or any other country or geographic location in which the Longhorn Entities planned to operate the Business as of the Closing Date (the “Restricted Business”); provided, however, that nothing in this Agreement or in the definition of Restricted Business shall prohibit or in any other individual way restrict the Restricted Party’s ability to:
(i) engage in the Restricted Business to the extent necessary to perform its duties under this Agreement;
(ii) make or representative capacity whatsoever, either maintain passive investments of less than five percent of the outstanding equity securities in any entity engaged in the Restricted Businesses listed for his trading on any recognized securities exchange or in the over-the-counter markets;
(iii) own benefit or for the benefit an equity interest of any other Person engaged in the Restricted Business acquired as a creditor in bankruptcy other than by a voluntary investment decision; or
(iv) acquire the assets or capital stock or other equity interests of any other Person engaged in the Restricted Business, provided, however, that the net sales attributable to the Restricted Business conducted by such person accounts for less than 25% of the net sales of such person for its most recently completed fiscal year.
(b) The Parties agree that this covenant is personal to Buyer and Buyer may not assign or entityotherwise transfer this covenant, in whole or in part, to any Person other than to other Affiliates of Buyer. During the Restricted Period, Seller shall not, and shall cause each of its Subsidiaries not to, without the prior written consent of Buyer, directly or indirectly, induce or attempt to induce any customer, reseller, retailer, distributor, supplier, licensee or other Person to cease doing business with Buyer or the Company (which consent may be withheld in its sole discretion), engage Longhorn Entities or in any manner way interfere with the relationship between any such customer, reseller, retailer, distributor, supplier, licensee or other Person and Buyer or the Longhorn Entities.
(c) Seller agrees that any remedy at law for any breach by it or its Affiliates of Section 9.6(a) or (b) would be inadequate, and Buyer shall be entitled to injunctive or other equitable relief in the Business (as defined below) such case in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or addition to any other metropolitan area right Buyer may have, whether at law or in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of terminationequity. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees Each party intends that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect 9.6 be enforced under the legitimate business interests laws applied in each jurisdiction in which enforcement is sought. If any provision of the Company. This noncompetition provision can only this Section 9.6 shall be revoked or modified held by a writing signed by both Executive and the Chief Executive Officer court of the Companycompetent jurisdiction to be invalid or unenforceable, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light 9.6 shall be amended to revise the scope of all of the facts and circumstances of the relationship between Executive and the Company; provided howeversuch provision to make it enforceable, Executive and the Company are aware that in certain circumstances courts have refused if possible, or, if not possible, to enforce certain terms of agreements not to compete. Thereforedelete such provision, in furtherance ofeither case, and not in derogation of without affecting the other or remaining provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms 9.6 or this Agreement. Any invalidity or unenforceability of any of the provisions provision of this Section 9, 9.6 in a jurisdiction will not affect the validity or enforceability of that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, provision in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationother jurisdiction.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Rowan Companies Inc), Stock Purchase Agreement (Joy Global Inc)
Non-Competition. During Executive hereby acknowledges and agrees that, during the Employment Period course of employment, Executive has become familiar with and involved in all aspects of the business and operations of the Employer. Executive hereby covenants and agrees that for an additional period of one four (14) year following years after the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) Effective Time (the “Noncompetition TermRestricted Period”), Executive agrees shall not, without the prior approval of a majority of the Company’s board of directors (Executive not toparticipating), directly or indirectly, either through in any form of ownership or capacity (whether as an individuala proprietor, owner, agent, officer, director, officershareholder, organizer, partner, principal, agentmanager, member, employee, employercontractor, adviserconsultant or otherwise) own, consultantmanage or control or participate in the ownership, shareholdermanagement or control, partneror perform services that are the same as or substantially to those services provided by Executive to the Bank Entities twelve (12) months prior to the cessation of Executive’s employment by the Bank Entities to, member any Competitive Business or to any Person that is attempting to form or acquire a Competitive Business if such Competitive Business operates, or is planning to operate, any office, branch or other facility (in any other individual case, a “Branch”) that is (or representative capacity whatsoever, either for his own benefit is proposed to be) located within a fifty (50) mile radius of the Bank Entities’ headquarters or for the benefit within a twenty-five (25) mile radius of any person or entity, without the prior written consent Branch office of the Company Bank Entities that is in existence immediately prior to the cessation of Executive’s employment by the Bank Entities. Notwithstanding any provision hereof to the contrary, this Section 7.1 does not restrict Executive’s right to (which consent may be withheld in its sole discretion), engage in a) own or acquire securities of any manner in entity that files periodic reports with the Business (as defined belowSecurities and Exchange Commission under Section 13 or 15(d) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date Securities Exchange Act of this Agreement or 1934, as of amended (the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees Exchange Act”); provided that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive total ownership of 10% or constitutes less than two percent (2%) of the outstanding equity interests securities of such entity; (b) to own, or during the Restricted Period to maintain ownership of (but not to acquire ownership of), passive investments in securities of any public entity. Executive hereby acknowledges entity that does not file periodic reports with the geographic boundaries, scope of prohibited activities Securities and the time duration Exchange Commission under Section 13 or 15(d) of the provisions of this Section 9 are reasonable and are no broader Exchange Act; provided that his total ownership constitutes less than are necessary to protect the legitimate business interests five percent (5%) of the outstanding securities of such company or (c) to serve as a director of Westminster American Insurance Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensation.
Appears in 2 contracts
Sources: Termination Agreement (Delmar Bancorp), Termination Agreement
Non-Competition. During (a) Upon any termination of Executive's employment hereunder, other than a termination (whether by resignation, voluntary or involuntary) in connection with a Change in Control, as a result of which the Employment Period and Bank is paying Executive benefits under Section 0 of this Agreement, Executive agrees not to compete with the Bank and/or the Company for an additional a period of one (1) year following such termination within twenty-five (25) miles of any existing branch of the termination Bank or any subsidiary of his employment the Company or within twenty-five (25) miles of any office for which the Bank, the Company or a Bank subsidiary of the Company has filed an application for regulatory approval to establish an office, determined as of the effective date of such termination, except as agreed to pursuant to a resolution duly adopted by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Board. Executive (as described in Section 5c above) (the “Noncompetition Term”)agrees that during such period and within said area, cities, towns and counties, Executive agrees shall not towork for or advise, consult or otherwise serve with, directly or indirectly, either through any form of ownership entity whose business materially competes with the depository, lending or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent business activities of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing Bank and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information . The parties hereto, recognizing that irreparable injury will result to the Bank and/or the Company, its business and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur property in the event of Executive's breach of this Subsection 11(a) agree that in the event of any such information breach by Executive, the Bank and/or the Company will be entitled, in addition to any other remedies and damages available, to an injunction to restrain the violation hereof by Executive, Executive's partners, agents, servants, employers, employees and all persons acting for or with Executive. Executive represents and admits that Executive's experience and capabilities are such that Executive can obtain employment in a business engaged in other lines and/or of a different nature than the Bank and/or the Company, and that the enforcement of a remedy by way of injunction will not prevent Executive from earning a livelihood. Nothing herein will be construed as prohibiting the Bank and/or the Company from pursuing any other remedies available to the Bank and/or the Company for such breach or threatened breach, including the recovery of damages from Executive.
(b) Executive recognizes and acknowledges that the knowledge of the business activities and plans for business activities of the Bank and affiliates thereof, as it may exist from time to time, is a valuable, special and unique asset of the business of the Bank. Executive will not, during or after the term of his employment, disclose any knowledge of the past, present, planned or considered business activities of the Bank or affiliates thereof to any person, firm, corporation, or other entity for any reason or purpose whatsoever (except for such disclosure as may be required to be provided to any federal banking agency with jurisdiction over the Bank or used by a competitor of the CompanyExecutive). Notwithstanding the foregoing, Executive shall may disclose any knowledge of banking, financial and/or economic principles, concepts or ideas which are not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less and exclusively derived from the business plans and activities of the outstanding equity interests Bank, and Executive may disclose any information regarding the Bank or the Company which is otherwise publicly available. In the event of any public entity. a breach or threatened breach by Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary Section, the Bank will be entitled to protect an injunction restraining Executive from disclosing, in whole or in part, the legitimate business interests knowledge of the Company. This noncompetition provision can only be revoked past, present, planned or modified by a writing signed by both Executive and the Chief Executive Officer considered business activities of the CompanyBank or affiliates thereof, as approved by the Boardor from rendering any services to any person, which specifically states an intent firm, corporation, other entity to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Thereforewhom such knowledge, in furtherance ofwhole or in part, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed has been disclosed or is threatened to be modified or reformed to restrict Executive’s competition with disclosed. Nothing herein will be construed as prohibiting the Company Bank from pursuing any other remedies available to the maximum extentBank for such breach or threatened breach, as to time, geography and business scope, which including the court shall find enforceable; provided however, in no event shall the provisions recovery of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationdamages from Executive.
Appears in 1 contract
Non-Competition. During By and in consideration of the Company’s entering into this Employment Agreement, and in further consideration of the Executive’s exposure to the Confidential Information of the Company Group, the Executive agrees that the Executive shall not, during the Employment Period and for an additional period of one (1) year following the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) Executive’s Termination Date (the “Noncompetition TermRestriction Period”), Executive agrees not to, (x) directly or indirectly, either through any form of ownership own, manage, operate, join, control, be employed by, or as an individualparticipate in the ownership, directormanagement, officeroperation or control of, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage connected in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executivewith, including, without limitation, those involvingholding any position as a stockholder, employmentdirector, compensationofficer, and Confidential Informationconsultant, and independent contractor, employee, partner, or investor in, any Restricted Enterprise (as defined below), (y) be employed by any subsidiary, division or unit of an entity which subsidiary, division or unit derives more than 50% of its aggregate gross revenues from Restricted Products (as defined below), or (z) assist any person or entity in order commencing a business, business line or subsidiary, division or unit of an entity that would reasonably be expected to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood derive more than 50% of irreparable damage which would occur its aggregate gross revenues from Restricted Products; provided, that in the no event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% one percent or less of the outstanding equity interests securities of any public entityclass of any issuer whose securities are registered under the Securities Exchange Act of 1934, as amended, standing alone, be prohibited by this Section 4.2, so long as the Executive does not have, or exercise, any rights to manage or operate the business of such issuer other than rights as a stockholder thereof. Executive hereby acknowledges For purposes of this paragraph, “Restricted Enterprise” shall mean any retail enterprise that derives more than 50% of its aggregate gross revenues from the geographic boundariesfollowing merchandise: home furnishings, scope home decor and accessories, outdoor furnishings, garden decor and seasonal decorations (“Restricted Products”). By way of prohibited activities and the time duration illustration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests foregoing, as of the CompanyEffective Date, (1) the following would be Restricted Enterprises: Cost Plus, Bed Bath and Beyond, Pier 1, Hobby Lobby, Michaels, ▇▇-▇▇▇, Kirklands, Tuesday Morning and Crate & Barrel and (2) the Executive would be prohibited by clause (y) above from becoming employed directly by the Home Goods division of TJX but not from serving as CEO of TJX (because TJX derives less than 50% of its gross revenue from Restricted Products). This noncompetition provision can only be revoked or modified by a writing signed by both Executive and During the Chief Executive Officer Restriction Period, upon request of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationthe Executive’s then-current employment status.
Appears in 1 contract
Non-Competition. During The Executive covenants and agrees that, during the Employment Period Executive’s employment hereunder and for an additional a period of one twenty-four (124) year following months thereafter (to the termination of his employment extent permitted by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by law), the Executive (as described in Section 5c above) (the “Noncompetition Term”)will not at any time, Executive agrees not to, directly or indirectly, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States or any other jurisdiction in which the Company or its corporate controlled affiliates is engaged or has reasonably firm plans to engage in business, whether as a principal, investor, employee, consultant, independent contractor, officer, director, board member, manager, partner, agent, or otherwise, alone or in association with any other person, firm, corporation, or business organization, work for, become employed by, engage in, carry on, provide services to, or assist in any manner (whether or not for compensation or gain) a person or entity that engages in any business in which the Company or any of its corporate controlled affiliates is engaged (a “Competing Business”), where Executive’s position or service for such Competing Business relates to Executive’s positions with or the types of services performed by the Executive for the Company or any of its corporate controlled affiliates, or is otherwise competitive with the Company’s or any of its affiliates’ products or services; provided, however, that the foregoing will not prohibit the Executive from (i) serving on Board of Directors (or comparable bodies) of other entities where the Company owns or leases has given prior permission, (ii) after the occurrence of both a Change of Control (as defined in Section 12) and the termination of the Executive’s employment, being employed by (A) a campus-based institution of higher education that derives no more than $10 million twenty percent (20%) of its revenues from online education, provided, that the Executive is not predominantly engaged in gross asset value of assets supporting the online education, or (B) an online learning company that does not provide higher education, or (iii) serving as of the date of this Agreement or as of the date of termination. For purposes of this Section 9a faculty member, “Businessscholar in residence” means or similar academic position, provided, that the acquisitionExecutive does not engage in administrative matters, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order other than to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Companyde minimis extent. Notwithstanding the foregoing, the ownership by the Executive of less than five percent (5%) of the outstanding stock of any corporation listed on a national securities exchange shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions a violation of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensation9(a).
Appears in 1 contract
Sources: Employment Agreement (American Public Education Inc)
Non-Competition. During the Employment Period and for an additional period (a) Upon any termination (whether voluntary or involuntary) of one Executive’s employment, other than a termination (1whether voluntary or involuntary) year following the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described connection with a Change in Section 5c above) (the “Noncompetition Term”)Control, Executive agrees not toto compete with the Bank and the Company for a period of two (2) full years following such termination within one hundred (100) miles of any existing branch of the Bank, the Bank’s subsidiaries, or any subsidiary of the Company, or within one hundred (100) miles of any office for which the Bank, the Bank’s subsidiaries, the Company or a bank subsidiary of the Company has filed an application for regulatory approval, determined as of the effective date of such termination, except as agreed to pursuant to a resolution duly adopted by the Board. Executive agrees that during such period and within said cities, towns and counties, Executive shall not work for or advise, consult or otherwise serve with, directly or indirectly, either through any form entity whose business materially competes with the depository, lending or other business activities of ownership or as an individualthe Bank and/or the Company. The parties hereto, directorrecognizing that irreparable injury will result to the Bank and/or the Company, officerits business and property in the event of Executive’s breach of this Subsection 9(a) agree that in the event of any such breach by Executive, principalthe Bank and/or the Company will be entitled, agent, employee, employer, adviser, consultant, shareholder, partner, member or in addition to any other individual remedies and damages available, to an injunction to restrain the violation hereof by Executive, Executive’s partners, agents, servants, employers, employees and all persons acting for or representative capacity whatsoeverwith Executive. Executive represents and admits that Executive’s experience and capabilities are such that Executive can obtain employment in a business engaged in other lines and/or of a different nature than the Bank and/or the Company, either and that the enforcement of a remedy by way of injunction will not prevent Executive from earning a livelihood. Nothing herein will be construed as prohibiting the Bank and/or the Company from pursuing any other remedies available to the Bank and/or the Company for his own benefit such breach or for threatened breach, including the benefit recovery of any person or entity, without damages from Executive.
(b) Executive recognizes and acknowledges that the prior written consent knowledge of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as business activities and plans for business activities of the date of this Agreement or as of the date of termination. For purposes of this Section 9Bank, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executiveaffiliates thereof, includingas it may exist from time to time, without limitationis a valuable, those involvingspecial and unique asset of the business of the Bank and the Company. Executive will not, during or after the term of his employment, compensationdisclose any knowledge of the past, and Confidential Informationpresent, and in order planned or considered business activities of the Bank, the Company or affiliates thereof to protect the Company’s Confidential Information and any person, firm, corporation, or other legitimate business interests and entity for any reason or purpose whatsoever (except for such disclosure as may be required to reduce the likelihood of irreparable damage which would occur in the event such information is be provided to any federal banking agency with jurisdiction over the Bank, the Company or used by a competitor of the CompanyExecutive). Notwithstanding the foregoing, Executive shall may disclose any knowledge of banking, financial and/or economic principles, concepts or ideas which are not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less and exclusively derived from the business plans and activities of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked Bank or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved and Executive may disclose any information regarding the Bank or the Company which is otherwise publicly available. In the event of a breach or threatened breach by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Bank and/or the Company and will be entitled to an injunction restraining Executive agree that from disclosing, in whole or in part, the event a court should decline to enforce any terms of any knowledge of the provisions past, present, planned or considered business activities of this Section 9the Bank, that this Section 9 shall be deemed the Company or affiliates thereof, or from rendering any services to any person, firm, corporation, other entity to whom such knowledge, in whole or in part, has been disclosed or is threatened to be modified disclosed. Nothing herein will be construed as prohibiting the Bank or reformed to restrict Executive’s competition with the Company from pursuing any other remedies available to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify Bank or the Company in writing for such breach or threatened breach, including the recovery of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationdamages from Executive.
Appears in 1 contract
Sources: Change in Control Agreement (Northwest Bancshares, Inc.)
Non-Competition. During As a material inducement to Parent’s consummation of the Employment Period Contemplated Transactions, including, without limitation, Parent’s acquisition of the goodwill associated with the business of the Companies and the Subsidiaries, each of the Principal Shareholders (and not the Minority Shareholders) agrees as follows:
(a) Such Principal Shareholder will not, for an additional a period of one two (12) year years following the termination Closing Date (computed by excluding from such computation any time during which such Principal Shareholder is found by a court of his employment by the Company for Cause ( as described competent jurisdiction to have been in violation of any provision of this Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above7.5(a)) (the “Noncompetition TermRestricted Period”), Executive agrees not to, directly or indirectly, either through for himself or on behalf of or in conjunction with any form of ownership other Person, engage in, invest in or otherwise participate in (whether as an individualowner, employee, officer, director, officermanager, principalconsultant, independent contractor, agent, employee, employer, adviser, consultant, shareholder, partner, member advisor, or in any other individual or representative capacity whatsoever, either for his own benefit or for capacity) any business that competes with the benefit business of any person or entity, without the prior written consent of the Companies, the Subsidiaries or the Surviving Corporation (such business, the “Restricted Business”) in any Restricted Area, or at any time following the Closing Date make any use of any Company Intellectual Property other than in connection with the business of any of the Companies, the Subsidiaries or the Surviving Corporation. Notwithstanding the above, the foregoing covenant shall not be deemed to prohibit the acquisition as a passive investment of not more than two percent (2%) of the capital stock of a competing business whose stock is traded on a national securities exchange or over-the-counter and shall not be deemed to prohibit the acquisition of any capital stock of Parent.
(b) Such Principal Shareholder will not, for a period of two (2) years following the Closing Date (computed by excluding from such computation any time during which consent may be withheld such Principal Shareholder is found by a court of competent jurisdiction to have been in its sole discretionviolation of any provision of this Section 7.5(b)), engage directly or indirectly, for himself or on behalf of or in conjunction with any other Person, (i) solicit or hire (or assist or encourage any other Person to solicit or hire), or otherwise interfere in any manner with the employment or consulting relationship of, any Person who is an employee or consultant of any of Parent, the Companies, the Subsidiaries, the Surviving Corporation or any of Parent’s other subsidiaries (each, a “Restricted Entity”), other than by general public advertisement or other such general solicitation not specifically targeted at any such Person, (ii) induce or request any customer of any Restricted Entity to reduce, cancel or terminate its business with such Restricted Entity or otherwise interfere in any manner in the Business any Restricted Entity’s business relationship with any of its customers, or (as defined belowiii) solicit or accept business from any customer of any Restricted Entity in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of terminationconnection with a Restricted Business. For purposes of this Section 97.5(b), “Business” means a Person shall be deemed to be an employee, consultant or customer of any Restricted Entity if any such relationship existed or exists at any time (A) during the acquisitionthirty (30) days prior to the execution of this Agreement or (B) after the Closing Date and during the operation of this provision, development, management, ownership, leasing and/or disposition and any such Person shall cease to have the applicable status one year after the termination of retail shopping centers and/or any capital raising activities related thereto. Executive understands and such relationship.
(c) Such Principal Shareholder agrees that his the foregoing covenants contained are reasonable with respect to their duration, geographic area and scope, to protect, among other things, Parent’s acquisition of the goodwill associated with the business of the Companies and the Subsidiaries. If a judicial or arbitral determination is made that any provision of this Section 7.5 constitutes an unreasonable or otherwise unenforceable restriction against a Principal Shareholder, then the provisions of this Section 7.5 shall be rendered void with respect to such Principal Shareholder only to the extent such judicial or arbitral determination finds such provisions to be unenforceable. In that regard, any judicial or arbitral authority construing this Section 7.5 shall be empowered to sever any prohibited business activity, time period or geographical area from the coverage of any such agreements and to apply the remaining provisions of this Section 7.5 to the remaining business activities, time periods and/or geographical areas not so severed. Moreover, in the event that any provision, or the application thereof, of this Section 7.5 is determined not to be specifically enforceable, Parent may be entitled to recover monetary damages as a result of the breach of such agreement.
(d) Such Principal Shareholder acknowledges that he has carefully read and considered the provisions of this Section 7.5. Such Principal Shareholder acknowledges that he has received and will receive sufficient consideration and other benefits to justify the restrictions in this Section 9 7.5. Such Principal Shareholder also acknowledges and understands that these restrictions are being given in consideration reasonably necessary to protect interests of the numerous mutual promises and agreements contained in this Agreement between the Company and ExecutiveParent, including, without limitation, those involving, employment, compensationprotection of the goodwill acquired, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur such Principal Shareholder acknowledges that such restrictions will not prevent him from conducting businesses that are not included in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated restricted business set forth in this Section 9 solely 7.5 during the periods covered by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entityrestrictive covenants set forth in this Section 7.5. Executive hereby Such Principal Shareholder also acknowledges that the geographic boundaries, scope of prohibited activities Contemplated Transactions constitute full and adequate consideration for the time duration execution and enforceability of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained restrictions set forth in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensation7.5.
Appears in 1 contract
Sources: Merger Agreement (Selectica Inc)
Non-Competition. During (a) Executive agrees that, beginning on the Employment Period Effective Date, and continuing for an additional a period of one twenty-four (124) year following months (“the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition TermRestricted Period”), Executive agrees will not to, directly or indirectly, engage in any of the following prohibited activities:
(1) induce or attempt to induce any person who is employed by or otherwise engaged to perform services for the Company to cease working for the Company;
(2) induce or attempt to induce any customer, client, vendor, or supplier of the Company to cease doing business with the Company; or
(3) engage or participate, or prepare to engage or participate, either through any form of ownership individually or as an individualemployee, directorcontractor, consultant, principal, owner, partner, agent, trustee, officer, principaldirector or shareholder of a corporation, agentpartnership or other business entity, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent of business which competes with the Company (which consent may be withheld in its sole discretion), engage or engages in any manner in the Business (as defined below) in the metropolitan areas line of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where business which the Company owns has entered or leases more than $10 million in gross asset value of assets as of internally announced an intention to enter prior to the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and ExecutiveEffective Date, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect (a) the Company’s Confidential Information and other legitimate business interests and to reduce provision of radiology services through the likelihood of irreparable damage which would occur in the event such information is provided Internet to or used by a competitor on behalf of health care providers,; or (b) the Companyprovision of services or systems, including software and/or picture archiving and communication systems (“PACS”), that facilitate the acquisition or delivery of radiology images and data between locations for purposes of image management, image interpretation or delivery of interpretative reports, or (c) the provision of services or systems, including software, that are ancillary to the provision of radiology image interpretation services, including without limitation credentialing, licensing or scheduling, or (d) providing services to ThinAir Data Corp., Neurostar Solutions, Inc., or Commisure Inc., and/or any successors in interest. Notwithstanding the foregoing, Executive nothing in this Agreement shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10preclude Executive from holding less than 1% or less of the outstanding equity interests capital stock of any public entity. Executive hereby acknowledges that corporation required to file periodic reports with the geographic boundariesSecurities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, scope of prohibited activities as amended, and the time duration securities of which are listed on any national securities exchange or quoted on the provisions National Association of this Section 9 are reasonable and are no broader than are necessary to protect Securities Dealers Automated Quotation System or traded on the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. over-the-counter market.
(b) Executive acknowledges that the Company would has expended substantial time and expense in the acquisition, research and development of processes, technology, techniques and products which are unique to the Company or not employ him generally known to others and which could be unfairly taken or provide him used by others in competition with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree further acknowledges that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company is not based strictly on geographical location. Accordingly, Executive agrees that the restrictions contained in this Agreement are reasonable. If the scope of the restrictions contained herein is too broad to permit enforcement of such restrictions to their full extent, then such restrictions shall be construed or re-written (“blue-lined”) so as to be enforceable to the maximum extentextent permitted by law, as and Executive hereby consents, to timethe extent Executive may lawfully do so, geography to the judicial modification of the scope of such restrictions in any proceeding brought to enforce such restrictions.
(c) To the extent Executive has question about whether a potential opportunity violates this Agreement, she will inform the General Counsel of the opportunity and business scope, which the court shall find enforceable; provided however, in no event shall the provisions seek a response.
(d) Executive understands her obligation to notify any potential employer about this provision and VRC agrees that Executive may provide a prospective employer with a copy of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensation11 only.
Appears in 1 contract
Non-Competition. During Executive hereby acknowledges and agrees that, during the Employment Period course of employment, in addition to Executive’s access to Confidential Information, Executive has become, and for an additional period will become, familiar with and involved in all aspects of the business and operations of the Bank Entities. Executive hereby covenants and agrees that during the Term until one (1) year following after the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) Termination Date (the “Noncompetition TermRestricted Period”), Executive agrees will not toat any time (except for the Bank Entities), directly or indirectly, either through in any form of ownership or capacity (whether as an individuala proprietor, owner, agent, officer, director, officershareholder, organizer, partner, principal, agentmanager, member, employee, employercontractor, adviserconsultant or otherwise):
(1) provide any advice, consultantassistance or services of the kind or nature which he provided to any of the Bank Entities or relating to business activities of the type engaged in by any of the Bank Entities within the preceding two years, shareholderto any Person who owns or operates a Competitive Business or to any Person that is attempting to initiate or acquire a Competitive Business (in either case, partnera “Competitor”) if (i) such Competitor operates, member or is planning to operate, any office, branch or other facility (in any other individual case, a “Branch”) that is (or representative capacity whatsoeveris proposed to be) located within a fifty (50) mile radius of the Bank’s headquarters or any Branch of the Bank Entities and (ii) such Branch competes or will compete with the products or services offered or planned to be offered by the Bank Entities during the Restricted Period; or
(2) sell or solicit sales of Competitive Products or Services to Persons within such 50 mile radius, either for his or assist any Competitor in such sales activities. Notwithstanding any provision hereof to the contrary, this Section 8.4 does not restrict Executive’s right to (i) own benefit or for the benefit securities of any person Entity that files periodic reports with the Securities and Exchange Commission under Section 13 or entity, without the prior written consent 15(d) of the Company Securities Exchange Act of 1934, as amended; provided that Executive’s total ownership constitutes less than two percent (which consent may be withheld in its sole discretion), engage in any manner in 2%) of the Business outstanding securities of such company and that such ownership does not does not violate: (as defined belowA) in the metropolitan areas Code of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas Conduct or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as policy of the date of this Agreement Bank, including any policy related to inside #113813870 v1 information; (B) any applicable securities law; or as (C) any applicable standstill or other similar contractual obligation of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationBank.
Appears in 1 contract
Non-Competition. During The Executive acknowledges that employment by the Corporation will give the Executive access to the Confidential Information, and that the Executive’s knowledge of the Confidential Information will enable the Executive to put the Corporation at a significant competitive disadvantage if the Executive is employed or engaged by or becomes involved in a Competitive Business. Accordingly, during the Employment Period and for an additional the relevant period of one (1) year following time specified in Schedule “A” after the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by Termination Date, the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not towill not, directly or indirectly, individually or in partnership or in conjunction with any other Person:
11.1.1. be engaged, directly or indirectly, in any manner whatsoever, including, without limitation, either through individually or in partnership, jointly or in conjunction with any form of ownership other person, or as an individualemployee, directorconsultant, officeradviser, principal, agent, employeemember, employershareholder or proprietor in any Competitive Business; or
11.1.2. advise, adviserinvest in, consultantlend money to, shareholderguarantee the debts or obligations of, partner, member or otherwise have any other financial or other interest (including an interest by way of royalty or other compensation arrangements) in or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit respect of any person Person which carries on a Competitive Business. The restrictions in section 11.1 above will not prohibit the Executive from (i) holding not more than five percent of the issued shares of a public company listed on any recognized stock exchange or entity, without traded on any bona fide “over the counter” market anywhere in the world or (ii) with the prior written consent of the Company (board of directors of the Corporation, which consent may will not be withheld in its sole discretion)unreasonably withheld, engage in serve on the board of directors of other corporations or accept part-time unpaid academic appointments, provided that any manner in such board or academic appointment does not interfere with the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as performance of the date Executive’s obligations hereunder, is not a Competitive Business and provides, in a manner satisfactory to the board of this Agreement or as directors of the date Corporation, for the adequate protection of terminationany intellectual property arising out of or in connection with such appointment. For purposes greater certainty, the Executive’s obligations under this section 11.1 are in addition to the obligations respecting disclosure and use of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company pursuant to the maximum extent, as Confidentiality Agreement referred to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationsection 10.
Appears in 1 contract
Sources: Executive Employment Agreement (Lorus Therapeutics Inc)
Non-Competition. During (a) Except as otherwise provided in the Employment Period and License Agreement, for an additional a period of one thirty (130) year following months after the termination Closing Date, no Non-Competition Party shall either directly or indirectly engage in the Restricted Business in any of his employment by the Company for Cause ( countries in which the Business is transacted as described in Section 5a above) or of the voluntary termination of employment by the Executive (as described in Section 5c above) Closing Date (the “Noncompetition Term”"Territory"). At SkillSoft PLC's request and at SkillSoft PLC's expense, Executive agrees not toeach Seller shall enforce, directly or indirectly, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entitythe Buyers, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage in any manner in all non-competition and similar agreements with respect to the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas between any Seller or any other metropolitan area in the United States where the Company owns party which are not Assigned Contracts or leases more than $10 million in gross asset value contracts of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the CompanyBusiness Subsidiary. Notwithstanding the foregoing, Executive no Non-Competition Party shall be prohibited from:
(i) continuing to engage in any type of business conducted by any Non-Competition Party as of the date hereof, or in which any of them have an interest, which is not be deemed to have violated this Section 9 solely part of the Business Subsidiaries or the Business as conducted by reason of his passive ownership of 10the Asset Sellers, and any reasonable extension or development thereof so long as any such extension or development is not focused primarily on providing IT, desktop or business soft skills content;
(ii) acquiring or owning less than 5% or less (by voting power) of the outstanding equity interests capital stock of any public entity. Executive hereby acknowledges that publicly traded company which is primarily engaged in the geographic boundaries, scope of prohibited activities Restricted Business;
(iii) performing its obligations under this Agreement and the time duration Ancillary Agreements or otherwise taking actions in connection with the winding-up of the provisions Business; or
(iv) acquiring any entity which is engaged in the Restricted Business ("Acquired Company") if, in its last full fiscal year prior to such acquisition, the consolidated revenues of such Acquired Company from the Restricted Business constituted less than ten percent (10%) of the total revenues of such entity, provided that a Non-Competition Party may acquire an Acquired Company with consolidated revenues from the Restricted Business constituting more than ten percent (10%) of the total revenues of such entity so long as either (i) within six months after such acquisition, such Non-Competition Party disposes or agrees to dispose of the relevant portion of the Acquired Company's business or securities to comply with this Section 9 are reasonable and are no broader than are necessary or (ii) such acquisition closes within six (6) months prior to protect the legitimate business interests expiration of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained obligations set forth in this Section. The Company and Executive agree and stipulate .
(b) Each Seller agrees that the agreements duration and covenants not to compete contained geographic scope of the non-competition provision set forth in this Section 9 hereof 6.3 are fair reasonable. In the event that any court determines that the duration or the geographic scope, or both, is unreasonable and reasonable in light of all of that such provision is to that extent unenforceable, the facts and circumstances of the relationship between Executive Buyers and the Company; provided however, Executive Sellers agree that the provision shall remain in full force and effect for the greatest time period and in the greatest area that would not render it unenforceable. The Buyers and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, Sellers intend that this Section 9 non-competition provision shall be deemed to be modified or reformed a series of separate covenants, one for each and every county of each and every state of the United States of America and each and every political subdivision of each and every country outside the United States of America where this provision is intended to restrict Executive’s competition with be effective.
(c) The Sellers shall, and shall use their commercially reasonable efforts to cause their Affiliates to, refer all inquiries regarding the Company business, products and services of the Business to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationBuyers.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Skillsoft Public Limited Co)
Non-Competition. During the Employment Period and for an additional period of one (1) year following the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not to, directly or indirectly, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇▇ hereby acknowledges and agrees that, during the course of his service to the Bank Entities, in addition to his access to Confidential Information, ▇▇▇▇▇▇ or San Antoniohas become, Texas or any other metropolitan area and will become, familiar with and involved in the United States where the Company owns or leases more than $10 million in gross asset value of assets as all aspects of the date of this Agreement or as business and operations of the date of terminationBank Entities. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands ▇▇▇▇▇▇ hereby covenants and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition TermTerm until the later to occur of the date one eighteen (18) months after the Termination Date or the Expiration Date (the “Restricted Period”), Executive will not at any time (except for the Bank Entities), directly or indirectly, in any capacity (whether as a proprietor, owner, agent, officer, director, shareholder, organizer, partner, principal, manager, member, employee, contractor, consultant or otherwise):
(a) provide any advice, assistance or services of thekind or nature which he shall immediately notify provided to any of the Company Bank Entities or relating to business activities of the type engaged in writing by any of the Bank Entities within the preceding two years, to any Person who owns or operates a Competitive Business or to any Person that is attempting to initiate or acquire a Competitive Business (in either case, a “Competitor”) if (i) such Competitor operates, or is planning to operate, any office, branch or other facility (in any case, a “Branch”) that is (or is proposed to be) located within a fifty (50) mile radius of the Bank’s headquarters or any Branch of the Bank Entities and (ii) such Branch competes or will compete with the products or services offered or planned to be offered by the Bank Entities during the Restricted Period; or
(b) sell or solicit sales of Competitive Products to Persons within such 50 mile radius, or assist any Competitor in such sales activities. Notwithstanding any provision hereof to the contrary, this Section 8.5 does not restrict ▇▇▇▇▇▇’right to (i) own securities of any employmentEntity that files periodic reports with the Securities and Exchange Commission under Section 13 or 15(d) of the Securities Exchange Act of 1934, work as amended; provided that his total ownership constitutes less than two percent (2%) of the outstanding securities of such company and that such ownership does not does not violate: (A) the Code of Conduct or business he undertakes with any other policy of the Bank, including any policy related to inside information; (B) any applicable securities law; or on behalf (C) any applicable standstill or other similar contractual obligation of any person the Bank. The parties have also entered into that certain Non-Compete Agreement as of August 1, 2014 (including himself) or entity, whether or not for compensationthe “Non-Compete”).
Appears in 1 contract
Non-Competition. During the Employment Period and for an additional period of one (1a) year following the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive Seller agrees not to, directly or indirectly, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or that for the benefit of any person or entityperiods stated below, without the prior written consent of the Company (which consent may be withheld in neither Seller, nor its sole discretion)shareholders, engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇ (together the "Shareholders"), nor ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the Shareholders and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ being collectively referred to as the "Principals"), shall engage in any capacity either directly or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executiveindirectly, including, without limitation, as a principal or agent or for its own account or solely or jointly with others, or as a stockholder in any corporation, as a member of any limited liability company, or as a partner in any partnership or joint venture, or as a consultant or independent contractor, employee, salesperson or manager on behalf of others, within the states of Connecticut, Massachusetts, New Hampshire, New York or Rhode Island (together the "Non-Compete Area"),
(i) in the distribution of roofing, siding and related building materials such as those involvingproducts presently distributed by the Business for a period of fifteen (1 5) full years from the Closing Date (the "15 Year Non- Compete Period"); during the 15 Year Non-Compete Period, employmentSeller and its Shareholders shall not solicit sales in the Non-Compete Area for a business which is in competition with the distribution of the types of products that Seller or any of the Principals were distributing prior to Closing as identified in this paragraph (a)(i); and
(ii) in the distribution of windows and doors for a period of five (5) full years from the Closing Date (the "5 Year Non-Compete Period"); during the 5 Year Non-Compete Period, compensationSeller and the Principals shall not solicit sales in the Non-Compete Area for a business which is in competition with the distribution of the types of window products that Seller or any of the Principals were distributing prior to Closing as identified in this paragraph (a)(ii); provided that nothing herein shall (i) prohibit the acquisition or ownership of up to 1% of the outstanding voting securities of any corporation or other entity which is publicly owned; or (ii) prohibit Seller and its Principals from engaging as a manufacturer, contractor, or lumber yard representative so long as such businesses do not distribute roofing, windows, siding, doors and Confidential Informationrelated building materials in competition with the types of distribution channels used by Seller or any of its Principals prior to Closing. During the 5 Year Non-Compete Period, neither Seller nor any of the Principals shall solicit or employ any individual employed by Buyer at any time during the 5 Year Non-Compete Period; thereafter, during the balance of the 15 Year Non-Compete Period, neither Seller nor any of the Principals shall solicit any individual while in the employ of Buyer. Seller and Buyer hereby agree that the consideration paid by Buyer under this Agreement is fair and adequate for the obligations of Seller and the Principals under this Article 8.01(a). Seller shall cause the Principals each to execute a covenant not to compete with Buyer in the form of the document attached hereto as Exhibit L and incorporated herein by this reference ("Principal's Covenant"). The obligations of the Principals under this Agreement shall be independent of and in order addition to protect their respective obligations under any other agreement, including without limitation, the Company’s Confidential Information VAP Asset Purchase Agreement and any consulting or employment agreement.
(b) If any provision contained in this Article shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other legitimate business interests and to reduce provisions of this Article, but this Article shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. It is the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor intention of the Company. Notwithstanding parties that if any of the foregoingrestrictions or covenants contained herein is held to cover a geographic area or to be for a length of time which is not permitted by applicable law, Executive or in any way construed to be too broad or to any extent invalid, such provision shall not be deemed construed to have violated this Section 9 solely by reason be null, void and of his passive ownership of 10% no effect, but to the extent such provision would be valid or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundariesenforceable under applicable law, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline of competent jurisdiction shall construe and interpret or reform this Article to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to provide for a covenant having the maximum extentenforceable geographic area, as to time, geography time period and business scope, which the court shall find enforceable; provided however, in no event shall the other provisions of this Section 9 be deemed to be more restrictive to Executive (not greater than those contained herein) as shall be valid and enforceable under such applicable law. Executive Seller acknowledges that Buyer would be irreparably harmed by any breach of this Article and that there would be no adequate remedy at law or in damages to compensate Buyer for any such breach. Seller agrees that during Buyer shall be entitled to injunctive relief requiring specific performance by Seller of this Section, and Seller consents to the Noncompetition Termentry thereof, he without the necessity of proving actual damages, or posting bond or other security. Nothing herein shall immediately notify the Company in writing be deemed an election or remedies or preclude Buyer from seeking any and all other remedies, both legal and equitable, for a breach of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationthis Article 8.01.
Appears in 1 contract
Sources: Asset Purchase Agreement (Amcraft Building Products Co Inc)
Non-Competition. During As an inducement for CH and Sub to enter into the Employment Period Merger Agreement, as additional consideration for the consideration to be paid to Executive pursuant to his employment at will with BH and for an additional BH Sub, and in consideration of the matters set forth in the above recitals, Executive agrees that:
(a) For a period of one (1) year following after the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive Effective Time (as described defined in Section 5c abovethe Merger Agreement) (the “Noncompetition Term”)"Non-Compete Period"):
(i) Executive will not engage or invest in, own, manage, operate, finance, control, or participate in the ownership, management, operation, financing, or control of, or be employed by, any person or entity engaged in the business of manufacturing or producing new manufactured housing (not previously owned) which has a manufacturing facility located anywhere within one hundred (100) miles of Belmont, Mississippi, Conway, Arkansas or Millen, Georgia; provided, however, that Executive agrees may purchase or otherwise acquire up to (but not tomore than) 4.9% of any class of securities of any enterprise (but without otherwise participating in the activities of such enterprise) if such securities are listed on any national or regional securities exchange or have been registered under Section 12(g) of the Securities Exchange Act of 1934, as amended;
(ii) Executive will not, directly or indirectly, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas himself or any other metropolitan area person, except in the United States where the Company owns or leases more than $10 million in gross asset value of assets as ordinary course of the date Companies' business while Executive is employed by one of the Companies as may be necessary to carry out Executive's duties as an employee of such Companies, induce or attempt to induce any employee of any of the Companies to leave the employ of such company; and
(b) Executive agrees that each of the covenants in subparagraph (a) above are reasonable with relation to their duration, geographical area and scope;
(c) Executive will not, at any time during or after the Non-Compete Period, slander or libel the Companies, or any of their stockholders, directors, officers, employees, or agents; and
(d) Executive will, at any time during the period of this Agreement Agreement, at CH's, BH's or as of the date of termination. For purposes of this Section 9BH Sub's request, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and confirm to BH Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of 's compliance with the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms Agreement within ten (10) days of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not such request for compensationconfirmation by BH.
Appears in 1 contract
Sources: Non Competition and Non Solicitation Agreement (Belmont Homes Inc)
Non-Competition. During As a material inducement for CBI to provide Executive with the Employment Period consideration set forth in Sections 4(a), 4(b) and for an additional period 15(a) above, and as a condition to receipt of one (1) year following the termination of his employment by the Company for Cause ( as described benefits set forth in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”6(c), Executive agrees that, for a period of twelve (12) months following the Date of Termination, Executive shall not tobecome employed in an executive capacity by any Competitor of CBI within the United States, Canada or any other region in which CBI or its current or former affiliates operates or has operated and in which Executive has directly or indirectly rendered services during the last thirty-six (36) months of Executive’s employment and, further, Executive shall not provide services of a similar or comparable type and character to those provided by Executive to CBI during the last thirty-six (36) months of Executive’s employment with CBI, whether as an employee, officer, director, partner, shareholder, consultant or otherwise, to any Competitor of CBI within the United States, Canada or any region in which Cadbury Schweppes plc operates and in which Executive has rendered services during Executive’s employment; provided, however, that this Section 15 shall not prohibit Executive’s ownership, either directly or indirectly, of less than 1% of any class of publicly traded securities of any entity, and provided further that this Section 15 shall not prohibit Executive’s employment as an employee or officer or Executive’s performance of services as a consultant with any Competitor if Executive is not directly or indirectly involved in the aspects of such Competitor’s business that are competitive with CBI. As further material inducement for CBI to provide Executive with the consideration set forth in Sections 4(a), 4(b) and 15(a), above, and as a condition to receipt of the benefits set forth in Section 6 (c), Executive agrees that for the earlier of (i) the closing consummation of the Transaction (as defined below) or (ii) a period of twelve (12) months following the Date of Termination, Executive will not become employed or perform services, directly or indirectly, either through any form of ownership or whether as an individual, director, officer, principal, agent, employee, employeradvisor, adviser, consultant, shareholder, partner, member or consultant or in any other individual or representative capacity whatsoevercapacity, either for his own benefit or for in connection with the benefit sale by Cadbury Schweppes plc of any person or entity, without an interest in Cadbury Schweppes Americas Beverage (the prior written consent of the Company (which consent may be withheld in its sole discretion“Transaction”) to”), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person private equity firm, their advisors, bankers or consultants (including himselfalthough Executive may provide services for such other private equity firms in any other capacity). Executive specifically recognizes and affirms that the Non-Competition provision contained herein is material and contains important terms of this Agreement, and Executive further agrees that should all or any part or application of this Section 15(c) be held or entityfound invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction in an action between Executive and CBI, whether or not for compensationExectuive forfeits all benefits setforth in Section 6(c) and must repay to CBI any benefits already paid by CBI to Executive under Section 6(c)(i), (ii), (iii), (iv), (vi), (vii) (viii) and (ix).
Appears in 1 contract
Sources: Employment Agreement (Dr Pepper Snapple Group, Inc.)
Non-Competition. During Seller has as at Closing, established the Employment Period reputation of the Business. Seller undertakes and agrees with Purchaser that for an additional a period of one two (12) year following years after the termination Closing Date, except with the consent of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”)Purchaser, Executive agrees Seller shall not to, directly or indirectly, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member on its own account or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes conjunction with or on behalf of any person (including himself) person, firm or entitycompany whether by sales, marketing, investing, managing or other activities, carry on, or be engaged, concerned or interested, directly or indirectly, whether as a equity owner, lender, officer, director, employee, partner, agent or otherwise in carrying on any business, in North America, which is engaged in the design, development, manufacture or sale of Products as carried on by the Business at the Closing Date (a "Competitive Business"); provided, however, that the restrictions contained in this Section 8.5.1 will not prohibit, in any way: (i) the acquisition of a controlling interest or merger with any person, or a division or business unit thereof, acquired by or merged, directly or indirectly, into Seller or any of its Affiliates after the Closing Date if the Competitive Business accounts for compensationfive (5%) percent or less of the sales or five (5%) percent or less of the value of the acquired business at the date of such acquisition (whichever is the greater) and the Competitive Business is not anticipated to become greater than fifteen (15%) percent of such acquired business’s sales or value; (ii) the acquisition by Seller or any of its Affiliates, directly or indirectly, of a non-controlling ownership interest in any person or a division or business unit thereof, or any other entity engaged in a Competitive Business, if the Competitive Business accounts for fifteen (15%) percent or less of the sales or fifteen (15%) percent or less of the value of the acquired business at the date of such acquisition (whichever is the greater) and the Competitive Business is not anticipated to become greater than twenty percent (20%) of such acquired business’s sales or value; (iii) the acquisition by Seller or any of its Affiliates, directly or indirectly, of less than five (5%) percent of the publicly traded stock of any person engaged in a Competitive Business; and (iv) provision of consulting services to any Person for the purpose of designing or manufacturing on behalf of Seller or any Seller Affiliate or selling to Seller or any Seller Affiliate components and parts solely for automotive applications other than those that would constitute Products.
Appears in 1 contract
Sources: Sale and Purchase Agreement
Non-Competition. During (a) Each Specified Legacy Member agrees that so long as it remains a Member of the Employment Period Company and for an additional period eighteen months thereafter, neither such Specified Legacy Member nor any controlled Affiliate of one (1) year following the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not tosuch Specified Legacy Member shall engage, directly or indirectly, either for itself or through or in partnership or conjunction with any form of ownership or other Person, as an individuala stockholder, directorinvestor, officermanager, principaloperator, member, partner, employee, consultant, agent, employeeby contract, employer, adviser, consultant, shareholder, partner, member or otherwise in any Company Business anywhere in the world. Each Specified Legacy Member shall be responsible for any breach of this Section 10.03 by any controlled Affiliate of such Specified Legacy Member. For the avoidance of doubt, subject to the other individual terms and conditions of this Agreement, any Specified Legacy Member or representative capacity whatsoeverits Affiliates may provide products or services to the Company or any of its Subsidiaries.
(b) Notwithstanding anything to the contrary in Section 10.03(a), either for his own benefit nothing in this Agreement shall preclude, prohibit or for the benefit restrict any Specified Legacy Member or any Affiliate of any person Specified Legacy Member from:
(i) making or entity, without the prior written consent holding any passive investment in an unaffiliated third party that engages in a Company Business so long as (A) such Specified Legacy Member and its Affiliates collectively hold not more than 5% of the Company outstanding voting securities or similar voting equity interests of such Person, (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined belowB) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of if such passive investment is purchased after the date of this Agreement the Merger Agreement, the purchase price paid by such Specified Legacy Member and its Affiliates collectively, is less than $50 million in the aggregate, and (C) such Specified Legacy Member and its Affiliates do not possess the right (through ownership of securities, contract or otherwise) to serve on or designate a member of, the board of directors (or similar governing body) of such Person, and do not exercise any managerial influence over or have any active role in the management or operations of such Person;
(ii) making or holding a passive equity interest in any private debt or equity investment fund so long as such Specified Legacy Member and its Affiliates do not have the ability to control or exercise any managerial influence over such fund; or
(iii) providing services to any Person so long as such Specified Legacy Member and its Affiliates do not have a position with or provide services to any division or line of business of such Person that is engaged in a Company Business; provided, that such division or line of business generated less than fifteen percent of such Person’s consolidated annual revenues in the date last completed fiscal year of termination. For purposes of such Person; provided, further, that this Section 910.03(b)(iii) shall not apply to RG.
(c) With respect to any business unit or controlled Affiliate of a Legacy Member, “Business” means the acquisition, development, management, ownership, leasing and/or disposition Section 10.03(a) shall cease to be applicable to any such Person at such time as it is no longer a part or controlled Affiliate of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensationsuch Legacy Member, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed apply to have violated this Section 9 solely by reason any Person that purchases assets, operations or a business from such Legacy Member if such Person is not a business unit or entity of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby such Legacy Member after such transaction is consummated.
(d) Each Specified Legacy Member acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this covenants described under Section 9 10.03(a) are reasonable and are no broader than are necessary to protect the legitimate business interests of each Member and constitute a material inducement to each Member to enter into this Agreement and consummate the Companytransactions contemplated by this Agreement. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and In the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges event that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises any covenant contained in this Section. The Company and Executive agree and stipulate that Section 10.03(a) should ever be adjudicated to exceed the agreements and covenants not time, geographic, product or service or other limitations permitted by Applicable Law in any jurisdiction, then any court is expressly empowered to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance ofreform such covenant, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 such covenant shall be deemed to be modified or reformed to restrict Executive’s competition with the Company reformed, in such jurisdiction to the maximum extent, as to time, geography and business scopegeographic, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work product or business he undertakes with service or on behalf of any person (including himself) or entity, whether or not for compensationother limitations permitted by Applicable Law.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Skechers Usa Inc)
Non-Competition. During Each Shareholder agrees that during the Employment Period and for an additional period of one (1) year following the termination of his employment by the Company for Cause ( as described in Section 5a above) Noncompete Period, he, she or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not toit shall not, directly or indirectly, either (i) enter into, engage in, consult, manage or otherwise participate in the operation of any business which competes with the businesses of the Companies as conducted during any portion of the ▇▇▇▇ Ownership Period through the Closing Date (the “Current Businesses”) within the Restricted Territory; (ii) solicit, divert, entice or otherwise take away any form customers, prospective customers, business, cooperative associations, patronage or orders of ownership the Companies with respect to the Current Businesses, or as an individualattempt to do so; (iii) solicit orders for, directorbroker, officeror sell, principalany coal or other products or services offered or sold by the Companies in connection with the Current Businesses in competition with, agentor for any business that competes with, employeethe Current Businesses within the Restricted Territory; or (iv) promote or assist, employerfinancially, adviserby providing introductions or making marketing efforts for, consultantor otherwise, shareholder, partner, member or any Person engaged in any other individual business which competes with the Current Businesses within the Restricted Territory. Nothing contained in this Section 6.7 shall prohibit (A) any Shareholder from acquiring or representative capacity whatsoever, either for his own benefit or for holding at any one time a passive investment of less than two percent of the benefit outstanding shares of capital stock of any person or entitypublicly traded corporation that may compete with the Companies within the Restricted Territory, without (B) the prior written consent continuation of the Company surface and current mineral leasing businesses of ▇▇▇▇ Energy, LLC (which consent may be withheld in its sole discretion)including with respect to the Lease Agreements and any other agreement between ▇▇▇▇ Energy, engage in any manner in LLC and Buyer, NACoal or their respective Affiliates, successors or assigns) and the Business (as defined below) in the metropolitan areas fuel and lube sales and distribution business of Houston, A▇▇▇▇▇▇ Oil Co., Inc., and the ownership, operation and disposition thereof by one or more of the Shareholders, in each case only to the extent that the business of such companies does not compete with the Current Businesses, including by not leasing, optioning, purchasing or otherwise controlling surface or mineral interests in lands on or under which the Companies intend to conduct mining-related activities within five (5) years in ▇▇▇▇▇▇ County, Alabama, Jefferson County, Alabama or San AntonioTuscaloosa County, Texas Alabama, (C) subject to the immediately preceding clause (B), the employment of the Beneficiaries by ▇▇▇▇ Energy, LLC or ▇▇▇▇▇ Oil Co., Inc., (D) the execution, delivery and performance of the Consulting Agreement, (E) any other metropolitan area Beneficiary from being a consultant to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ solely with respect to blasting litigation expertise, or (F) any Shareholder from entering into, engaging in, consulting, managing or otherwise participating in the United States where operation of any business that serves solely as an equipment vendor, including to companies in the Company owns coal mining industry. Notwithstanding Section 6.7(a)(B), if the Shareholders desire to lease, option, purchase or leases more than $10 million control any such surface or mineral interests in gross asset value of assets as of such lands, the date of this Agreement or as of the date of termination. For purposes of this Section 9Shareholders’ Representative may request in writing to Buyer such desire and, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event that Buyer does not intend to conduct mining-related activities on or under such information is provided to or used by a competitor lands within five (5) years of the Company. Notwithstanding the foregoingShareholders’ written request, Executive Buyer shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% prevent Shareholders from leasing, optioning, purchasing or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationcontrolling such lands.
Appears in 1 contract
Sources: Share and Membership Interest Purchase Agreement (Nacco Industries Inc)
Non-Competition. During (a) Unless the Employment Period and obligation is waived or limited by Ceridian in accordance with subsection (b) of this Section 6.02, Executive agrees that for an additional a period of one (1) year two years following the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”)for any reason, Executive agrees will not to, directly or indirectly, either through any form of ownership alone or as an individuala partner, officer, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member shareholder or in employee of any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person firm or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage in any manner commercial activity in the Business (competition with any part of Ceridian's business as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets conducted as of the date of such termination of employment or with any part of Ceridian's contemplated business with respect to which Executive has Confidential Information as governed by Article V of this Agreement or as of the date of terminationAgreement. For purposes of this Section 9subsection (a), “Business” means "shareholder" shall not include beneficial ownership of less than five percent (5%) of the acquisitioncombined voting power of all issued and outstanding voting securities of a publicly held corporation whose stock is traded on a major stock exchange. Also for purposes of this subsection (a), development"Ceridian's business" shall include business conducted by Ceridian or its affiliates and any partnership or joint venture in which Ceridian or its affiliates is a partner or joint venturer; provided that, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained "affiliate" as used in this Section 9 are being given sentence shall not include any corporation in consideration which Ceridian has ownership of less than fifteen percent (15%) of the numerous mutual promises and agreements contained in this Agreement between voting stock.
(b) At its sole option Ceridian may, by written notice to Executive within 30 days after the Company and effective date of termination of Executive, including, without limitation, those involving, 's employment, compensationwaive or limit the time and/or geographic area in which Executive cannot engage in competitive activity.
(c) During the term of the non-competition obligation, and Confidential Informationprior to accepting employment with, and in order or agreeing to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage provide consulting services to, any firm which would occur offers products or services in the event such fields of electronics or information is provided to or used by a competitor of the Company. Notwithstanding the foregoingprocessing, Executive shall not be deemed give 30 days prior written notice to have violated this Section 9 solely by reason of his passive ownership of 10% Ceridian. Such written notice shall describe the proposed employment or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities consulting services and the firm to which they will be rendered. Ceridian's failure to respond or object to such notice shall not in any way constitute acquiescence or waiver of Ceridian's rights under this Article VI.
(d) During any period of non-competition pursuant to this Article VI Ceridian shall pay Executive an amount equal to the usual rate of Executive's Base Salary in effect at the time duration of termination. There shall be credited against Ceridian's obligation to make such payments any other payments made by Ceridian to Executive pursuant to Article IV of this Agreement. In the provisions event that Ceridian elects, pursuant to subsection (b) of this Section 9 are reasonable and are no broader than are necessary 6.02, to protect the legitimate business interests waive all or any portion of the Company. This noncompetition provision can only non- competition obligation, no payment shall be revoked or modified required by a writing signed by both Executive and Ceridian with respect to the Chief Executive Officer portion of the Company, as approved by the Board, non- competition period which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationhas been waived.
Appears in 1 contract
Non-Competition. During As an inducement for Buyer to enter into the Employment Period and Purchase --------------- Agreement, Sellers agree that, for an additional a period of one four (14) year following years after the termination of his employment by Closing:
(a) Sellers will not, nor shall they permit the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not Dell ▇▇▇▇▇▇▇ Marital Trust to, directly or indirectly, either through engage or invest in, own, manage, operate, finance, control, or participate in the ownership, management, operation, or control of, be employed by or associated with any form of ownership business whose products or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member activities compete in whole or in part with the current products or activities of the Acquired Companies, in any other individual of the counties listed on Schedule 9.1 within the states of Pennsylvania, Ohio, West Virginia, New York and Maryland; provided, that Sellers may purchase or representative capacity whatsoeverotherwise acquire up to (but not more than) five percent of any class of securities of any enterprise (but without otherwise participating in the activities of such enterprise) if such securities are listed on any national or regional securities exchange or have been registered under Section 12(g) of the Securities Exchange Act of 1934. Sellers agree that this covenant is reasonable with respect to its duration, geographical area, and scope.
(b) Sellers will not, directly or indirectly, either for his own benefit themselves or any other Person, (i) induce or attempt to induce any employee of an Acquired Company to leave the employ of such Acquired Company, (ii) employ, or otherwise engage as an employee, independent contractor, or otherwise, any employee of an Acquired Company, (iii) employ, or otherwise engage as an employee either of ▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇ for six months following the benefit Closing or, if earlier, until such time as the employment of any person ▇▇▇▇▇ ▇▇▇▇▇ or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇ ▇▇▇▇▇, as the case may be, has been terminated by the Acquired Companies, or (iv) induce or attempt to induce any customer, supplier, licensee, or business relation of an Acquired Company to cease doing business with such Acquired Company. This covenant shall not prohibit Sellers from hiring any former employees of an Acquired Company (except for ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ or San Antonio) sixty (60) days following termination of employment with such Acquired Company for any reason so long as Sellers did not induce such employee to quit. A general solicitation of employment, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets such as a newspaper advertisement, that is not directed towards employees of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall Acquired Companies will not be deemed to have violated be a violation of this Section 9 solely by reason of his passive ownership of 10% covenant.
(c) Sellers will not, directly or less of indirectly, either for themselves or any other Person, solicit the outstanding equity interests business of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary Person known to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed Sellers to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions a customer of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entityan Acquired Company, whether or not for compensationSellers had personal contact with such Person, with respect to products or activities which compete with the products or activities of an Acquired Company.
(d) The activities described in Exhibits 7.8 and 7.9 will not be violative of Sellers' non-compete obligations.
Appears in 1 contract
Sources: Purchase Agreement (Commercial Aggregates Transportation & Sales LLC)
Non-Competition. During 9.1 The Executive shall not compete with the Employment Period Corporation, the Parent or any of their Affiliates, directly or indirectly. He shall not participate in any capacity whatsoever in a business that would directly or indirectly compete with the Corporation, the Parent or any of their Affiliates, including, without limitation, as an executive, director, officer, employer, principal, agent, fiduciary, administrator of another's property, associate, independent contractor, franchisor, franchisee, distributor or consultant unless such participation is fully disclosed to the Board and approved in writing in advance. In addition, the Executive shall not have any interest whatsoever in such an enterprise, including, without limitation, as owner, shareholder, partner, limited partner, lender or silent partner. This noncompetition covenant is limited as follows:
(a) As to the time period, to the duration of the Executive's employment and for an additional a period of one (1) year following the date of termination of his employment employment;
(b) As to the geographical area, the territory in which a specific product had been actively exploited by the Company for Cause ( as described in Section 5a aboveCorporation, the Parent and/or their Affiliates during the period of Executive’s employment;
(c) As to the nature of the activities, to duties or the voluntary termination of employment activities which are identical or substantially similar to those performed or carried on by the Executive at or during Executive’s employment.
9.2 The foregoing stipulation shall nevertheless not prevent the Executive from buying or holding shares or other securities of a corporation or entity other than the Corporation or the Parent whose securities are publicly traded on a recognized stock exchange where the securities so held by the Executive do not represent more than five percent (as described 5%) of the voting shares of such other corporation or entity and do not allow for its control.
9.3 The Executive also undertakes, for the same period and in Section 5c above) (respect of the “Noncompetition Term”same territory referred to hereinabove in subsections 9.1(a), Executive agrees (b) and (c), not toto solicit clients or do anything whatsoever to induce or to lead any person to end, directly or indirectly, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member in whole or in part, business relations with the Corporation, the Parent or any other individual or representative capacity whatsoeverof their Affiliates.
9.4 The Executive also undertakes, either for his own benefit or for the benefit of any person or entity, without the prior written consent same period and in respect of the Company (which consent may be withheld same territory referred to hereinabove in its sole discretionsubsections 9.1(a), engage in any manner (b) and (c), not to induce, attempt to induce or otherwise interfere in the Business (as defined below) in relations which the metropolitan areas of HoustonCorporation, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas the Parent or any of their Affiliates has with their distributors, suppliers, representatives, agents and other metropolitan area parties with whom any of them deals.
9.5 The Executive also undertakes, for the same period and in the United States where the Company owns or leases more than $10 million in gross asset value of assets as respect of the date of this Agreement same territory referred to in subsections 9.1(a), (b) and (c), not to induce, attempt to induce or as otherwise solicit the personnel of the date Corporation, the Parent or their Affiliates to leave their employment with the Corporation, the Parent or any of termination. For purposes of this Section 9, “Business” means their Affiliates nor to hire the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration personnel of the numerous mutual promises and agreements contained Corporation, the Parent or any of their Affiliates for any enterprise in this Agreement between which the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. has an interest.
9.6 The Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable limited as to the time period, the geographic area and are no broader than are the nature of the activities to what the parties deem necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Corporation, the Parent and their Affiliates, while allowing the Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for earn his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained living.
9.7 Nothing in this Section 9 hereof are fair and reasonable in light of all shall operate to reduce or extinguish the obligations of the facts and circumstances Executive arising at law or under this contract which survive at the termination of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms this Agreement by reason of agreements not to compete. Thereforetheir nature and, in furtherance ofparticular, and not in derogation of without limiting the provisions of this Section 9foregoing, the Company Executive's duty of loyalty and Executive agree that in the event a court should decline obligation to enforce any terms of any of the provisions of this Section 9act faithfully, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography honestly and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationethically.
Appears in 1 contract
Non-Competition. During (a) Upon any termination of Executive's employment hereunder, other than a termination, (whether voluntary or involuntary) in connection with a Change in Control, as a result of which the Employment Period and Association is paying Executive benefits under Section 4 of this Agreement, Executive agrees not to compete with the Association and/or the Company for an additional a period of one (1) year following such termination within twenty-five (25) miles of any existing branch of the termination Association or any subsidiary of his employment the Company or within twenty-five (25) miles of any office for which the Association, the Company or a bank subsidiary of the Company has filed an application for regulatory approval to establish an office, determined as of the effective date of such termination, except as agreed to pursuant to a resolution duly adopted by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Board. Executive (as described in Section 5c above) (the “Noncompetition Term”)agrees that during such period and within said area, cities, towns and counties, Executive agrees shall not towork for or advise, consult or otherwise serve with, directly or indirectly, either through any form of ownership entity whose business materially competes with the depository, lending or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent business activities of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing Association and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information . The parties hereto, recognizing that irreparable injury will result to the Association and/or the Company, its business and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur property in the event of Executive's breach of this Subsection 9(a) agree that in the event of any such information breach by Executive, the Association and/or the Company will be entitled, in addition to any other remedies and damages available, to an injunction to restrain the violation hereof by Executive, Executive's partners, agents, servants, employers, employees and all persons acting for or with Executive. Executive represents and admits that Executive's experience and capabilities are such that Executive can obtain employment in a business engaged in other lines and/or of a different nature than the Association and/or the Company, and that the enforcement of a remedy by way of injunction will not prevent Executive from earning a livelihood. Nothing herein will be construed as prohibiting the Association and/or the Company from pursuing any other remedies available to the Association and/or the Company for such breach or threatened breach, including the recovery of damages from Executive.
(b) Executive recognizes and acknowledges that the knowledge of the business activities and plans for business activities of the Association and affiliates thereof, as it may exist from time to time, is a valuable, special and unique asset of the business of the Association. Executive will not, during or after the term of his employment, disclose any knowledge of the past, present, planned or considered business activities of the Association or affiliates thereof to any person, firm, corporation, or other entity for any reason or purpose whatsoever (except for such disclosure as may be required to be provided to any federal banking agency with jurisdiction over the Association or used by a competitor of the CompanyExecutive). Notwithstanding the foregoing, Executive shall may disclose any knowledge of banking, financial and/or economic principles, concepts or ideas which are not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less and exclusively derived from the business plans and activities of the outstanding equity interests Association, and Executive may disclose any information regarding the Association or the Company which is otherwise publicly available. In the event of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked a breach or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved threatened breach by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Association will be entitled to an injunction restraining Executive agree that from disclosing, in whole or in part, the event a court should decline to enforce any terms of any knowledge of the provisions past, present, planned or considered business activities of this Section 9the Association or affiliates thereof, that this Section 9 shall be deemed or from rendering any services to any person, firm, corporation, other entity to whom such knowledge, in whole or in part, has been disclosed or is threatened to be modified or reformed to restrict Executive’s competition with disclosed. Nothing herein will be construed as prohibiting the Company Association from pursuing any other remedies available to the maximum extentAssociation for such breach or threatened breach, as to time, geography and business scope, which including the court shall find enforceable; provided however, in no event shall the provisions recovery of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationdamages from Executive.
Appears in 1 contract
Sources: Employment Agreement (First Federal of Olathe Bancorp Inc)
Non-Competition. During With respect to each Principal, for a period commencing on the Employment Period Closing Date and for an additional period terminating on the later of one (1a) year following the fifth anniversary of the Closing Date or (b) the first anniversary of the termination of his each Principal's employment by with the Management Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”"Restricted Period"), Executive agrees not tothat Principal shall not, directly or indirectlyfor whatever reason, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either whether for his own benefit or her account or for the benefit account of any person or entityother Person, without the prior written consent of the Company (which consent may be withheld in its sole discretion)LLC and the Management Company, as a shareholder, employee, partner, member, board member, consultant, independent contractor, representative or otherwise, engage in any manner business competitive with any business conducted by any of the Grant Tani Entities at any time during th▇ ▇▇▇▇▇▇▇▇ed Period, in the Business (as defined below) in the metropolitan areas Metropolitan Statistical Area of Houston, A▇▇Los Ange▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (▇▇▇ "▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇"). ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ the foregoing, nothing herein shall prohibit that Principal from being a shareholder or San Antonioequity holder in any publicly-traded entity whose business is competitive with, Texas the business heretofore conducted, or conducted at any other metropolitan area time during the Restricted Period and in the United States where Restricted Area, by any of the Company owns or leases Grant Tani Entities, as long as that Prin▇▇▇▇▇ ▇▇▇▇ not hold more than $10 million a three percent equity interest in gross asset value of assets as of that publicly-traded entity. Each Principal acknowledges that the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained restrictions set forth in this Section 9 6.5, including the Restricted Period and the Restricted Area, are being given made in consideration connection with the sale of substantially all of the numerous mutual promises and agreements contained in this Agreement between assets of Grant Tani, including the Company and Executive, including, without limitation, those involving, employment, compensationgoodwill of tha▇ ▇▇▇▇▇▇▇▇, and Confidential Information, are intended to comply with the California Business and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Professions Code Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section16601. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained restrictions set forth in this Section 9 hereof are fair 6.5 shall not apply (1) to a Principal whose employment with the LLC and reasonable in light each of its Subsidiaries or by the Management Company is terminated by the LLC and those Subsidiaries or by the Management Company without Cause or by that Principal for Good Reason, (2) to a Principal if a Change of Control occurs and Holdings and its Permitted Transferees or WTC's successor, as the case may be, purchase all of the facts Principal's LLC Interests (including his or her Derivative Share (as that term is defined in the LLC Agreement) and circumstances the LLC Interests held by his or her Permitted Transferees (as that term is defined in the LLC Agreement)) pursuant to Section 7.5(a) of the relationship between Executive LLC Agreement or (3) if the LLC is liquidated and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements its business is not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event continued by a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or successor entity, whether or not for compensation.
Appears in 1 contract
Sources: Limited Liability Company Interest Purchase Agreement (Wilmington Trust Corp)
Non-Competition. During Employee acknowledges that his services are special and unique, and compensation is partly in consideration of and conditioned upon Employee not competing with Company or any of its subsidiaries, and that a covenant on Employee’s part not to compete is essential to protect the Employment Period business and good will of Employer. Accordingly, except as hereinafter provided, Employee agrees that for an additional period of one twelve (112) year following months after the termination of his employment by the Company for Cause ( employment, Employee shall not be engaged or interested as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not to, directly or indirectly, either through any form of ownership or as an individual, a director, officer, principal, agentstockholder (except as provided herein), employee, employer, adviser, consultant, shareholder, partner, member individual proprietor, lender or in any other individual or representative capacity whatsoevercapacity, either for his own benefit or for the benefit of any person or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage in any manner in business, which is competitive with the Business (business of Employer as defined below) in conducted at the metropolitan areas time of HoustonEmployee’s termination and which involves Employee’s knowledge, Aactions or assistance within the counties of Westchester, Rockland, Ulster, Orange, Duchess and S▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonioin New York and Sussex, Texas or any other metropolitan area Bergen and Passaic in New Jersey; however, this restriction will not apply to new kinds of business in which Employee may engage in the United States where future, after such termination, unless Employee has been actively engaged in the development or otherwise involved in such business while an employee of Employer. In addition, Employee agrees that for the same twelve (12) months, he shall not recruit or recommend any person who is or was an employee of the Company owns or leases more than $10 million in gross asset value of assets as while Employee was also an Employee, to any business which is competitive with the business of the date Employer as conducted at the time of this Agreement Employee’s termination and which involves Employee’s knowledge, actions or as assistance within the counties of the date Westchester, Rockland, Ulster, Orange, Duchess and S▇▇▇▇▇▇▇ in New York and Sussex, Bergen and Passaic in New Jersey. Nothing herein shall prohibit Employee from investing in any securities of termination. For purposes of this Section 9any corporation which is in competition with Employer, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 whose securities are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur listed on a national exchange or traded in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive over-the-counter market if Employee shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or own less than five (5%) percent of the outstanding equity interests securities of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationsuch corporation.
Appears in 1 contract
Sources: Confidentiality, Non Solicitation and Non Competition Agreement (Warwick Valley Telephone Co)
Non-Competition. During In consideration of the Employment Period good and for an additional valuable consideration provided in the Consulting Services Agreement, the receipt and sufficiency of which are hereby acknowledged by Signatory, Signatory hereby agrees and covenants that from the period of one (commencing on July 2, 2022 and continuing until July 1) year following the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) , 2024 (the “Noncompetition Term”"Restricted Period"), Executive agrees not toSignatory shall not, directly or indirectly, either through engage in, assist or become associated with a Competitive Activity. For purposes of this Section 3: (i) a "Competitive Activity" means any form business or other endeavor in any jurisdiction of ownership a kind being conducted by the Company or any of its subsidiaries or affiliates during the Term of the Consulting Services Agreement (or demonstrably anticipated by the Company or its subsidiaries or affiliates), in any jurisdiction; and (ii) Signatory shall be considered to have become "associated with a Competitive Activity" if Signatory becomes directly or indirectly involved as an individualowner, principal, employee, officer, director, officerindependent contractor, principalrepresentative, stockholder, financial backer, agent, employee, employer, adviser, consultant, shareholder, partner, member advisor, lender, or in any other individual or representative capacity whatsoeverwith any individual, either for his own benefit partnership, corporation or for the benefit of any person or entity, without the prior written consent of the Company (which consent may be withheld other organization that is engaged in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the CompanyCompetitive Activity. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10(i) Signatory may make and retain investments during the Restricted Period, for investment purposes only, in less than 5% or less of the outstanding equity interests capital stock of any public entity. Executive hereby acknowledges publicly-traded corporation engaged in a Competitive Activity if stock of such corporation is either listed on a national stock exchange or on the NASDAQ National Market System if Signatory is not otherwise affiliated with such corporation; (ii) Signatory may serve as an employee or partner (or otherwise invest or hold an ownership interest) in an investment firm that has an ownership interest in a partnership, corporation or other organization that is engaged in a Competitive Activity, provided that such ownership interest does not constitute greater than 20% of such investment firm's total assets under management and Signatory is not directly involved with the geographic boundariesprovision of direction or management of such entity engaged in the Competitive Activity, scope including the investment decisions thereof; and (iii) Signatory may serve as an employee of prohibited activities and or partner (or otherwise hold an ownership interest) in a consultancy or investment bank engaged in providing advisory services to entities engaged in Competitive Activities; provided that Signatory is not directly involved in the time duration provision of the provisions of this Section 9 are reasonable and are no broader than are necessary advisory services to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that such entities engaged in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationCompetitive Activity.
Appears in 1 contract
Non-Competition. During 9.1 The Executive shall not compete with the Employment Period Corporation, the Parent or any of their Affiliates, directly or indirectly. He shall not participate in any capacity whatsoever in a business that would directly or indirectly compete with the Corporation, the Parent or any of their Affiliates, including, without limitation, as an executive, director, officer, employer, principal, agent, fiduciary, administrator of another's property, associate, independent contractor, franchisor, franchisee, distributor or consultant unless such participation is fully disclosed to the Board and approved in writing in advance. In addition, the Executive shall not have any interest whatsoever in such an enterprise, including, without limitation, as owner, shareholder, partner, limited partner, lender or silent partner. This noncompetition covenant is limited as follows:
(a) As to the time period, to the duration of the Executive's employment and for an additional a period of one (1) year years following the date of termination of his employment employment;
(b) As to the geographical area, the territory in which a specific product had been actively exploited by the Company for Cause ( as described in Section 5a aboveCorporation, the Parent and/or their Affiliates during the period of Executive’s employment;
(c) As to the nature of the activities, to duties or the voluntary termination of employment activities which are identical or substantially similar to those performed or carried on by the Executive at or during Executive’s employment.
9.2 The foregoing stipulation shall nevertheless not prevent the Executive from buying or holding shares or other securities of a corporation or entity other than the Corporation or the Parent whose securities are publicly traded on a recognized stock exchange where the securities so held by the Executive do not represent more than five percent (as described 5%) of the voting shares of such other corporation or entity and do not allow for its control.
9.3 The Executive also undertakes, for the same period and in Section 5c above) (respect of the “Noncompetition Term”same territory referred to hereinabove in subsections 9.1(a), Executive agrees (b) and (c), not toto solicit clients or do anything whatsoever to induce or to lead any person to end, directly or indirectly, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member in whole or in part, business relations with the Corporation, the Parent or any other individual or representative capacity whatsoeverof their Affiliates.
9.4 The Executive also undertakes, either for his own benefit or for the benefit of any person or entity, without the prior written consent same period and in respect of the Company (which consent may be withheld same territory referred to hereinabove in its sole discretionsubsections 9.1(a), engage in any manner (b) and (c), not to induce, attempt to induce or otherwise interfere in the Business (as defined below) in relations which the metropolitan areas of HoustonCorporation, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas the Parent or any of their Affiliates has with their distributors, suppliers, representatives, agents and other metropolitan area parties with whom any of them deals.
9.5 The Executive also undertakes, for the same period and in the United States where the Company owns or leases more than $10 million in gross asset value of assets as respect of the date of this Agreement same territory referred to in subsections 9.1(a), (b) and (c), not to induce, attempt to induce or as otherwise solicit the personnel of the date Corporation, the Parent or their Affiliates to leave their employment with the Corporation, the Parent or any of termination. For purposes of this Section 9, “Business” means their Affiliates nor to hire the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration personnel of the numerous mutual promises and agreements contained Corporation, the Parent or any of their Affiliates for any enterprise in this Agreement between which the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. has an interest.
9.6 The Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable limited as to the time period, the geographic area and are no broader than are the nature of the activities to what the parties deem necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Corporation, the Parent and their Affiliates, while allowing the Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for earn his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained living.
9.7 Nothing in this Section 9 hereof are fair and reasonable in light of all shall operate to reduce or extinguish the obligations of the facts and circumstances Executive arising at law or under this contract which survive at the termination of the relationship between Executive and the Company; provided however, Executive and the Company are aware that this Agreement in certain circumstances courts have refused to enforce certain terms reason of agreements not to compete. Thereforetheir nature and, in furtherance ofparticular, and not in derogation of without limiting the provisions of this Section 9foregoing, the Company Executive's duty of loyalty and Executive agree that in the event a court should decline obligation to enforce any terms of any of the provisions of this Section 9act faithfully, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography honestly and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationethically.
Appears in 1 contract
Non-Competition. During None of the Employment Period Individual Shareholders will, and for an additional the Individual Shareholders shall procure that none of their respective Affiliates will, during the period beginning on the date hereof and ending on the [***] anniversary thereof (plus [***] if such longer period of one (1) year following time is recognized by Law as being binding on the termination Individual Shareholders or any of his employment by the Company for Cause ( their respective Affiliates, as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”applicable), Executive agrees carry on, or be engaged in, any Restricted Activity, provided that the foregoing obligation shall not toprohibit any of the Individual Shareholders or any of their respective Affiliates from:
12.1.1 acquiring control over any business (whether by merger or share purchase, directly the acquisition of all or indirectlysubstantially all of the assets of a business or otherwise) engaged in the Restricted Activity (an "Acquired Competing Business"), either through if the Restricted Activity does not represent the principal activity of such Acquired Competing Business at the time of acquisition ("principal activity" meaning activities representing more than 10% (ten per cent) of the aggregate annual turnover of such Acquired Competing Business in the financial year preceding the date of acquiring control over such Acquired Competing Business) and the annual turnover derived from the Restricted Activity at any form time is not more than EUR 250,000 (two hundred fifty thousand euro);
12.1.2 acquiring an interest in a business entity engaged in the Restricted Activity, provided that such interest shall not exceed 5% (five per cent) of ownership the voting stock ordinarily entitled to vote in the election of directors of such business entity or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member 5% (five per cent) of the economic interest in such business entity;
12.1.3 holding for investment purposes any securities or any other interest in any business entity the main activity of which is to make, select, hold and/or manage investments in start-up or other individual businesses, or representative capacity whatsoeverhaving any interest in any investment made, either for his own benefit selected, held or for the benefit of any person or managed by such entity, without the prior written consent provided that: none of the Company (which consent may be withheld in its sole discretion), engage Individual Shareholders or any of their respective Affiliates is able to control or direct such business entity in any manner with respect to such investments; and none of the Individual Shareholders or any of their respective Affiliates is able to control the management or direct the activities of any such entity in which such investment has been made; or
12.1.4 acquiring and holding a direct or indirect interest in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationPurchaser.
Appears in 1 contract
Sources: Share Purchase Agreement (Tekelec)
Non-Competition. During the Employment Period and (a) Seller Guarantor agrees that for an additional a period of one three years after the Closing Date, neither it nor any of its Subsidiaries shall engage, as a principal or as stockholder in any corporation, in marketing (1whether as principal, agent or reseller) year following the termination of his employment any Cellular Telephone System within any area served by any Cellular Telephone System owned or managed by the Company for Cause ( or its Subsidiaries as described in Section 5a aboveof the Closing Date and transferred to Buyer at the Closing (the "Restricted Activities"); provided that (i) Seller Guarantor or the voluntary termination any of employment its Affiliates may operate under an agency agreement with Buyer or one of its Affiliates to sell, as an agent, services provided by the Executive Cellular Telephone Systems on terms consistent with the terms offered on the date hereof by the Company or its Affiliates to agents of the Cellular Telephone Systems of comparable size and significance, (as described ii) nothing in Section 5c above) (the “Noncompetition Term”), Executive agrees not tothis Agreement shall prohibit or restrict Seller Guarantor, directly or indirectly, either through from (a) acquiring or owning any form of equity or other ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or interest in any other individual Person that engages, directly or representative capacity whatsoeverindirectly, either for his own benefit or for the benefit of any person or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage in any manner Restricted Activity if (A) such Restricted Activities account for less than 15% of such Person's total annual revenues, (B) Seller Guarantor divests any assets engaged in the Business Restricted Activities within 12 months of acquiring such business or assets and (as defined belowC) during such 12-month period Seller Guarantor shall not use (x) the name "Comcast" (or any name including the name "Comcast") or (y) any Seller Trademarks and Tradenames in such Restricted Activities; (b) acquiring any assets of a business that engages, directly or indirectly, in any Restricted Activity if (A) such Restricted Activities account for less than 15% of such assets' total annual revenues, (B) Seller Guarantor divests any assets engaged in the metropolitan areas Restricted Activities within 12 months of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ acquiring such business or San Antonio, Texas assets and (C) during such 12-month period Seller Guarantor shall not use (x) the name "Comcast" (or any other metropolitan area name including the name "Comcast") or (y) any Seller Trademarks and Tradenames in the United States where the Company owns or leases more than $10 million in gross asset value of assets such Restricted Activities; (c) owning any equity securities beneficially owned by Seller Guarantor as of the date hereof and listed on Schedule 5.05 or any securities into which such securities may be converted or exchanged (it being understood that Seller Guarantor will not actively participate in the management of this Agreement any Person listed on Schedule 5.05); (d) acquiring or as owning less than 5% of a class of the date outstanding publicly listed equity securities of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants Person (whether or not such Person engages in any Restricted Activities).
(b) If any provision contained in this section shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Section, but this Section 9 are being given in consideration shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. It is the intention of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor parties that if any of the Company. Notwithstanding the foregoingrestrictions or covenants contained herein is held to cover a geographic area or to be for a length of time which is not permitted by applicable law, Executive or in any way construed to be too broad or to any extent invalid, such provision shall not be deemed construed to have violated this Section 9 solely by reason be null, void and of his passive ownership of 10% no effect, but to the extent such provision would be valid or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundariesenforceable under applicable law, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline of competent jurisdiction shall construe and interpret or reform this section to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to provide for a covenant having the maximum extentenforceable geographic area, as to time, geography time period and business scope, which the court shall find enforceable; provided however, in no event shall the other provisions of this Section 9 be deemed to be more restrictive to Executive (not greater than those contained herein) as shall be valid and enforceable under such applicable law. Executive Seller Guarantor acknowledges that Buyer would be irreparably harmed by any breach of this section and that there would be no adequate remedy at law or in damages to compensate Buyer for any such breach. Seller Guarantor agrees that during Buyer shall be entitled to injunctive relief requiring specific performance by Seller Guarantor of this Section, and Seller Guarantor consents to the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationentry thereof.
Appears in 1 contract
Non-Competition. During In consideration of the Employment Period and for an additional period of one (1) year following the termination of his employment payments to be received by the Employee hereunder, in recognition of the highly competitive nature of the industries in which the Company for Cause ( as described conducts its business and to further protect the goodwill of the Company and to promote and preserve its legitimate business interests, the Employee agrees that during the period commencing the date hereof and ending on the last day of the Protected Vesting Period, he will not:
(i) Engage in Section 5a aboveany Business Activities (other than on behalf of the Company) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not to, directly or indirectly, either through any form of ownership or whether such engagement is as an individualofficer, director, officer, principal, agentproprietor, employee, employerpartner, adviserinvestor (other than as a holder of less than 1% of the outstanding capital stock of a publicly traded corporation), consultant advisor, agent or otherwise, in any geographic area in which the products or services of the Company have been distributed or provided during the period commencing two years prior to the date hereof and ending on the Termination Date;
(ii) Other than on behalf of the Company supply products or provide services (but only to the extent such restricted activities constitute Business Activities) to any customer with whom the Company has done any business during the period commencing two years prior to the date hereof and ending on the Termination Date, whether as an officer, director, proprietor, employee, partner, investor (other than as a holder of less than 1% of the outstanding capital stock of a publicly traded corporation), consultant, shareholderadvisor, partner, member agent or otherwise;
(iii) Assist others in engaging in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent of the Company Business Activities in the manner prohibited to the Employee; and
(which consent may be withheld in iv) Induce or attempt to induce employees of the Company, or its sole discretion), affiliates to engage in any manner activities hereby prohibited to the Employee or to terminate their employment. It is expressly understood and agreed that although the Employee and the Company consider the restrictions contained in each of clauses (i) through (iv) above to be reasonable for the Business (as defined below) in purpose of preserving the metropolitan areas Company's goodwill, proprietary rights, trade secrets, valuable confidential business interests, relationships with specific prospective and existing customers and going concern value, and to protect the Company's business opportunities, markets and trade areas, if a final judicial determination is made by a court having jurisdiction that the time or territory or scope of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas restricted activities or any other metropolitan area restriction contained in this Agreement is an unenforceable restriction on the United States where the Company owns or leases more than $10 million in gross asset value of assets as activities of the date Employee, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time, restricted activities and territory and to such other extent as such court may judicially determine or as of indicate to be reasonable. Alternatively, if the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or court referred to above finds that any capital raising activities related thereto. Executive understands and agrees that his covenants restriction contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation12 is unenforceable, and Confidential Informationsuch restriction cannot be amended so as to make it enforceable, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive finding shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of affect the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms enforceability of any of the provisions other restrictions contained therein. It is further expressly understood and agreed that the providing of Professional Services shall not be restricted under this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationAgreement.
Appears in 1 contract
Sources: Employment Agreement (Mascotech Inc)
Non-Competition. During the Employment Period and for an additional period of one (1) year following the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not to, directly or indirectly, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent Each of the Company (which consent may be withheld in its sole discretion), engage in any manner in Equity Holder and the Seller is familiar with the trade secrets related to the Business and with other Confidential Information concerning the Business, including all (as defined belowa) in inventions, technology and research and development related to the metropolitan areas of HoustonBusiness, A▇▇▇▇▇(b) customers and clients and customer and client lists related to the Business, ▇▇▇▇▇▇ or San Antonio(c) products (including products under development) and services related to the Business and related costs and pricing structures, Texas or any other metropolitan area in (d) accounting and business methods and practices related to the United States where Business and (e) similar and related Confidential Information and trade secrets related to the Company owns or leases more than $10 million in gross asset value of assets as Business. Each of the date of this Agreement or as of Equity Holder and the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands Seller acknowledges and agrees that his covenants contained the Business would be irreparably damaged if such Party were to directly or indirectly provide services to any Person competing with the Business and that such direct or indirect competition by any such Party would result in this Section 9 are being given in a significant loss of goodwill by the Business. In further consideration for the Buyer’s payment of the numerous mutual promises and agreements contained in Purchase Price under this Agreement between (in respect of which payment each of the Company Equity Holder and Executive, including, without limitation, those involving, employment, compensation, the Seller expressly acknowledges that he or it derives a substantial and Confidential Informationdirect benefit), and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce value of the likelihood of irreparable damage which would occur Business acquired by the Buyer hereunder (including the goodwill inherent in the event such information is provided to or used by a competitor Business as of the Company. Notwithstanding the foregoingdate hereof), Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less each of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities Equity Holder and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive Seller hereby agrees that during the Noncompetition Termperiod commencing on the Closing Date and ending on the third (3rd) anniversary of the Closing Date (the “Non-Competition Period”), he such Party shall immediately notify not acquire or hold any economic or financial interest in, act as a partner, member, stockholder, or representative of, render any services to, or otherwise operate or hold an interest in any Person (other than the Company Seller) having any location in writing any county in which the Business or the Buyer conducts operations as of the Closing Date, which entity, enterprise or other Person primarily engages in, directly or indirectly, any business that competes with the Business; provided, however, that nothing contained herein shall be construed to prohibit any such Party from purchasing up to an aggregate of two percent (2%) of any employment, work or business he undertakes with or on behalf class of the outstanding voting securities of any person other Person whose securities are listed on a national securities exchange (including himself) or entity, whether or not for compensationbut only if such investment is held on a purely passive basis).
Appears in 1 contract
Non-Competition. During 4.5.1 Upon the Employment Period terms and subject to the conditions set forth in this Section 4.5, Seller covenants and agrees that, as a material consideration running to Buyer for an additional Buyer's payments hereunder, for a period of one (1) year following five years from and after the termination of his employment Closing Date, Seller will neither permit Seller's name to be used by the Company for Cause ( as described nor engage in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not tocarry on, directly or indirectly, either through any form of ownership for itself or as an individuala member of a partnership or as a stockholder, director, officer, principalinvestor, agent, employeeassociate or consultant of any person, employerpartnership or corporation (other than Buyer or a subsidiary or affiliate of Buyer), adviserany business in competition with the business as carried on by Seller or any of its subsidiaries or affiliates on the Closing Date, consultantbut only for as long as such like business is carried on by (i) Buyer or any subsidiary or affiliate of Buyer, shareholderor (ii) any person, partnercorporation, member partnership, trust or other organization or entity deriving title from Buyer to the assets and goodwill of the business being carried on by Seller or any of its subsidiaries or affiliates on the Closing Date, in any county in which Buyer or any subsidiary or affiliate of Buyer conducts business, or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of county in any person or entity, without the prior written consent state of the Company (which consent may be withheld in its sole discretion)United States, engage or in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ country or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as political subdivision of the date of this Agreement or as of world. The parties intend that the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 4.5.1 shall be deemed to be modified or reformed to restrict Executive’s competition with a series of separate covenants, one for each county in each state of the Company United States and for each country and political subdivision of the world and, except for geographic coverage, each such separate covenant shall be identical in terms to the maximum extentcovenant contained in this Section 4.5.
1. Seller further covenants and agrees that for a period of five years from and after the Closing Date Seller will not recruit, as hire, assist others in recruiting or hiring, discuss employment with, or refer to timeothers concerning employment, geography any person who is, or within the twelve- month period immediately prior to the Closing Date was, an employee of Seller, Buyer or a subsidiary or affiliate of either.
4.5.2 The term of the covenants contained in Section 4.5.1 hereof shall be tolled for the period commencing on the date any successful action is filed for injunctive relief or damages arising out of a breach by Seller of Section 4.5.1 hereof and business scopeending upon final adjudication (including appeals) of such action.
4.5.3 If, which in any judicial proceeding, the court shall find enforceable; provided howeverrefuse to enforce all of the separate covenants contained in Section 4.5.1 hereof because the time limit is too long, it is expressly understood and agreed between the parties hereto that for purposes of such proceeding such time limitation shall be deemed reduced to the extent necessary to permit enforcement of such covenants. If, in no any judicial proceeding, the court shall refuse to enforce all of the separate covenants contained in Section 4.5.1 hereof because it is more extensive (whether as to geographic area, scope of business or otherwise) than necessary to protect the business and goodwill of Buyer, it is expressly understood and agreed between the parties hereto that for purposes of such proceeding the geographic area, scope of business or other aspect shall be deemed reduced to the extent necessary to permit enforcement of such covenants.
4.5.4 Seller acknowledges that a breach of Section 4.5.1 hereof would cause irreparable damage to Buyer, and in the event shall of Seller's actual or threatened breach of the provisions of Section 4.5.1 hereof, Buyer shall be entitled to a temporary restraining order and an injunction restraining Seller from breaching such covenants without the necessity of posting bond or proving irreparable harm, such being conclusively admitted by Seller. Nothing shall be construed as prohibiting Buyer from pursuing any other available remedies for such breach or threatened breach, including the recovery of damages from Seller. Seller acknowledges that the restrictions set forth in this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during Agreement are reasonable in scope and duration, given the Noncompetition Term, he shall immediately notify nature of the Company in writing business of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationBuyer.
Appears in 1 contract
Non-Competition. During In recognition of the Employment Period provisions of Section 4.1 and as consideration for an additional period of one (1) year following the termination of his your continued employment by IMIC, the Company payment by IMIC to you of compensation, and IMIC providing you with benefits, you agree that:
4.2.a. While you are performing services for Cause ( as described in Section 5a abovethe IMIC Group pursuant to this Employment Agreement, and at all times thereafter, you shall not disclose, communicate, or divulge to any person (other than to officers, directors, or employees of the IMIC Group whose duties require such knowledge) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not to, directly or indirectly, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either use for his own your personal benefit or for the benefit of anyone other than the IMIC Group any person trade secrets, specifications, sales plans, programs, research, or entity, without other confidential information employed in or proposed to be employed in the prior written consent business of the Company (IMIC Group and its subsidiaries which consent may be withheld in its sole discretion), engage in any manner comes to or came to your knowledge in the Business (as defined below) course of or by reason of your employment by IMIC or your performance under this Employment Agreement.
i. While you are performing services for the IMIC Group pursuant to this Employment Agreement, and, in the metropolitan areas event that your employment pursuant to this Employment Agreement terminates pursuant to Sections 3.1, 3.2, 3.3, or 3.4, during the period that you receive compensation from IMIC pursuant to any of Houstonthose Sections and thereafter for so long as IMIC continues to pay you in accordance with its payroll practices, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases but for not more than $10 million in gross asset value of assets as of the date of this Agreement or as of 12 month period beginning on the date of termination. For purposes of this , compensation at a rate determined in accordance with Section 94.2.b.ii, “Business” means you shall not directly or indirectly enter into or in any manner take part as an employee, agent, independent contractor, consultant, owner, sole proprietor, partner, joint venturer, member, officer, director, or shareholder or take part in any other capacity in, for, or with any person, firm, corporation, association, or business enterprise, or in any manner render any assistance to any business or endeavor, whose business activities are the acquisitionsame, developmentsimilar to, management, ownership, leasing and/or disposition of retail shopping centers and/or or competitive with any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration part of the numerous mutual promises business which is conducted by the IMIC Group during the course of your employment by IMIC prior to and agreements contained pursuant to this Employment Agreement in this Agreement between Sweden, the Company and ExecutiveUnited States, includingor in any territory, without limitationpossession, those involvingor foreign country, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader 4.2.b shall not preclude you from ownership, as an investor, of less than are necessary to protect the legitimate business interests 5% of the Company. This noncompetition provision can only be revoked or modified by stock of a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, publicly owned company which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained engages in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and such business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationactivities.
Appears in 1 contract
Sources: Employment Agreement (Industri Matematic International Corp)
Non-Competition. During (a) To protect the Employment Period goodwill, trade secrets and for an additional period confidential information of one (1) year following the termination members of his employment by the Company for Cause ( as described in Section 5a above) or Group, Consultant agrees that, during the voluntary termination Term of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not tothis Agreement he will not, directly or indirectly, either through be engaged in, have an economic interest in or be employed by any form business conducting the funeral, cemetery, crematory, burial or funeral prearranged sales business (collectively, the "Funeral Business") if such Funeral Business is directly or indirectly in competition with the business of ownership any member of the Group. Specifically, but without limitation, Consultant shall not individually, or as an individuala partner, member, employee, advisor, officer, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member shareholder or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit agent of any person corporation, trust, or other business entity, without own, manage, join, participate in, encourage, support, finance, be engaged in the Funeral Business or any business reasonably related to the Funeral Business which is in direct or indirect competition with any business owned, managed or operated by any member of the Group.
(b) Upon at least six (6) months prior written consent of notice to Consultant, Corporation may extend the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date Term of this Agreement or as for an additional two (2) year period following the Primary Term set forth in Section 1(d) hereof. Corporation may, at its option, extend the term of this Agreement for an additional two (2) year period upon giving at least six months written notice to Consultant prior to the expiration of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and first two (2) year extension period.
(c) Consultant agrees that his covenants the limitations as to time, geographic area, and scope of activity contained in this the covenant not to compete set forth in Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information 9(a) above do not impose a greater restraint than is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate confidential information, goodwill, and other business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer members of the Company, as approved by Group. If an arbitrator or a court of competent jurisdiction should declare the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants covenant not to compete contained unenforceable, in this whole or in part, due to any unreasonable restriction of duration and/or geographical area, then Corporation and Consultant hereby acknowledge and agree that such arbitrator or court of law or equity shall have the express authority to reform the covenant not to compete set forth in Section 9 hereof are fair 9(a) above to a reasonable restriction and/or to grant Corporation any and reasonable all relief, at law or in light of all equity, reasonably necessary to protect the interests of the facts and circumstances members of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationGroup.
Appears in 1 contract
Sources: Independent Contractor/Consultative Agreement (Service Corporation International)
Non-Competition. During the Employment Period and for an additional For a period of one five (15) year following years from and after the termination of his employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) Closing Date (the “Noncompetition TermRestricted Period”), Executive agrees Parent shall not, and shall cause each of its Subsidiaries not to, directly or indirectly, either through engage in the business of developing, manufacturing, packaging, offering for sale, selling or marketing household cleaning products in North America (the “Competing Activities”); provided, however, that Parent and its Subsidiaries may: (a) own or acquire, directly or indirectly, the securities of any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or Person that engages in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent of the Company (which consent may be withheld in Competing Activities if Parent and its sole discretion)Subsidiaries do not, engage in any manner in the Business (as defined below) in the metropolitan areas of Houstondirectly or indirectly, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases own more than $10 million in gross asset value of assets as five percent (5%) of the date aggregate outstanding equity securities of this Agreement or such Person; (b) perform and conduct such activities as are required by the terms of the date of termination. For Transition Services Agreement; (c) be a passive owner for investment purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less no more than five percent (5%) of the outstanding equity interests securities or debt securities of any public publicly-traded entity. Executive hereby acknowledges ; (d) be a passive investor with no management rights in any investment fund that holds securities in any Person engaged in a Competing Activity as long as such fund is managed by Persons that are not Subsidiaries of Parent; and (e) without limiting the generality of the foregoing, acquire any Person or business unit of any Person engaged in a Competing Activity if (i) the Competing Activity contributed less than twenty-five percent (25%) of such Person’s or business unit’s, as applicable, total revenues (based on its latest annual audited financial statements, if available); (ii) subject to Buyer’s prior execution and delivery to Parent of a confidentiality agreement in form and substance reasonably acceptable to Parent, Buyer is given notice of the sale of the business unit performing (or assets constituting) such Competing Activities at least one month prior to the date that the geographic boundariesCompeting Activities are offered for sale to any third party and, scope for a period of prohibited activities three (3) weeks during such month and prior to the time duration date any Competing Activities are offered for sale to any third party, Buyer is given a good faith opportunity to exclusively review such business unit (or assets), the materials related to the sale which are proposed to be circulated by the Seller(s) (including any financial statements or materials related to the financial state of the provisions of this Section 9 are reasonable business unit (or assets)) to prospective third party purchasers, and are no broader than are necessary to protect the legitimate make an offer to directly or indirectly acquire such business interests unit (or assets), and (iii) Parent or its applicable Subsidiary within eighteen (18) months of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer acquisition of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work such Person or business he undertakes with unit effects the sale of such business unit performing (or on behalf of any person (including himselfassets constituting) or entity, whether or not for compensationsuch Competing Activities.
Appears in 1 contract
Sources: Asset Purchase Agreement (Prestige Brands Holdings, Inc.)
Non-Competition. During (a) Executive acknowledges and agrees that as the Employment Period Companies’ President and CEO (i) he will be responsible for an additional period and directly involved in developing goodwill and relationships for the benefit of one the Companies with Agents, Customers, and Fronting/Program Business Relationships (1all as defined below), including personal contact with Agents, Customers, and Fronting/Program Business Relationships, and supervising others who develop and maintain Agent, Customer, and Fronting/Program Business Relationship goodwill and relationships; (ii) year following he will be provided and have access to the termination Holdings Group’s Confidential Information and Privileged Information, and will be compensated for the development, and supervising the development, of the same; (iii) he will be responsible for and directly involved in developing goodwill and relationships for the benefit of the Holdings Group with Fronting/Program Business Relationships; and (iv) he will have unique insight into and knowledge of the skills, talents and capabilities of the Companies’ key employees. Executive also acknowledges and agrees that at the inception of his employment with the Companies it was agreed that he would be bound by noncompetition restrictions.
(b) Executive agrees that during his employment by the Parent Company for Cause ( as described in Section 5a above) or and the voluntary termination of employment by Companies he will not compete against the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not to, directly or indirectly, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or Holdings Group in any manner, including without limitation by engaging in, or by assisting any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entityentity to engage in, without the prior written consent of the Company (which consent may be withheld in its sole discretion)or by having an ownership interest in, engage in any manner in the Competitive Business (as defined below) in the metropolitan areas Territory (as defined below), or by engaging in any conduct described in clauses (b)(i), (ii), (iii), (iv), (v), (vi), (vii) or (viii) below. Executive further agrees that after his employment by the Parent Company and the Companies ends, he will not during the Restricted Period (as defined below):
(i) be employed in any management, customer relationship or sales capacity by any insurance company that engages in Competitive Business in the Territory (as defined below) to provide services to or on behalf of Houstonsuch insurance company in the Territory that compete with the Companies’ products or services;
(ii) be employed in any management, A▇▇▇▇▇customer relationship or sales capacity by any entity that was a Fronting/Program Business Relationship during the Final Year to provide services to or on behalf of such Fronting/Program Business Relationship in the Territory;
(iii) solicit any entity that was a Fronting/Program Business Relationship during the Final Year to produce, ▇▇▇▇▇▇ or San Antonio, Texas underwrite and/or administer insurance policies in the Territory on behalf of an insurance company that competes against any of the Companies or any other metropolitan area Protected Holdings Group Company in the United States where Territory;
(iv) solicit any Customer to buy any insurance products or services offered in the Company owns Territory by the Companies during the Final Year;
(v) solicit any Prospective Customer to buy any insurance products or leases more than $10 million services offered in gross asset value of assets as the Territory by the Companies during the Final Year;
(vi) solicit any Agent doing business in the Territory (A) to assist any individual or entity who was a customer of the date Companies during the Final Year to obtain any insurance products or services that compete with any insurance products and services offered by the Companies in the Territory, or (B) to make referrals on behalf of this Agreement such customers with respect to such insurance products or services that compete with any insurance products and services offered by the Companies in the Territory;
(vii) induce or persuade any Agent, Customer or Fronting/Program Business Relationship not to do business with, or to switch business from, or reduce business with, the Companies or any Protected Holdings Group Company; or
(viii) solicit, or assist others in soliciting, Key Employees (as of defined below) to either leave the date of termination. Companies or to engage in a Competitive Business.
(c) For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9Agreement, the Company and Executive agree that in following capitalized terms shall have the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensation.meanings set forth below:
Appears in 1 contract
Sources: Employment Agreement (James River Group Holdings, Ltd.)
Non-Competition. In order to fully protect the Company's --------------- Proprietary Information, at all times during the Restricted Period, the Executive shall not, directly or indirectly, perform or provide managerial or executive services on behalf of any person, entity or enterprise which is engaged in, or plans to engage in, any business in the United States that directly or indirectly competes with the Company's Business (for this purpose, the "Company's Business" is the business of telephone and telecommunication installation and service.) During the Employment Period Executive's employment with the Company, the Executive shall not, directly or indirectly, have any interest in any business (other than the Company) that competes with the Company's Business, provided that this provision shall not apply to the Executive's ownership or acquisition, solely as an investment, of securities of any issuer that is registered under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended, and that are listed or admitted for an additional trading on any United States national securities exchange or that are quoted on the National Association of Securities Dealers Automated Quotations System, or any similar system or automated dissemination of quotations of securities prices in common use, so long as the Executive does not control, acquire a controlling interest in or become a member of a group which exercises direct or indirect control of, more than five percent of any class of capital stock of such corporation. For purposes of this Agreement the "Restricted Period" shall be the period during which the Executive is employed by the Company and, if the Executive's employment with the Company is either terminated by the Company without Cause pursuant to Section 5.4, or -8- by the Executive for Good Reason pursuant to Section 5.5c, and the Company has paid to the Executive all of amounts then payable to the Executive pursuant to Sections 5.4 or 5.5c, as applicable, the one (1) year period immediately following the termination of his the Executive's employment by the Company for Cause ( as described in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c above) (the “Noncompetition Term”), Executive agrees not to, directly or indirectly, either through any form of ownership or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without the prior written consent of the Company (which consent may be withheld in its sole discretion), engage in any manner in the Business (as defined below) in the metropolitan areas of Houston, A▇▇▇▇▇, ▇▇▇▇▇▇ or San Antonio, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive, including, without limitation, those involving, employment, compensation, and Confidential Information, and in order to protect with the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests of any public entity. Executive hereby acknowledges that the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensation.
Appears in 1 contract
Non-Competition. During In light of the Employment Period Seller Principal’s ownership interest in the Sellers’ Business, his key position with the Sellers, his contributions in the past to the growth and development of the Sellers’ Business, his confidential and proprietary information relating to the business and operations of the Sellers, and the significant financial benefit that each will derive from the sale of the Business, including the sale of substantially all of the Sellers’ assets and the goodwill value of the Sellers’ Business to Buyer, and in order to preserve for Buyer the goodwill, proprietary rights and value of the Sellers’ Business, and to protect Buyer’s investment in the Acquired Assets, including the Confidential Information of the Sellers, each Restricted Seller hereby covenants and agrees that during and for an additional the period commencing on the Closing Date and ending on the later of one (1i) year following the date that is five (5) years after the Closing Date, or (ii) the date that is two (2) years after the termination date of his Restricted Seller’s employment by with Buyer or its successors (and provided that Buyer or any person or entity deriving title from Buyer to the Company for Cause ( as described Business conducts a like Business in Section 5a above) or the voluntary termination of employment by the Executive (as described in Section 5c aboveSpecified Geographic Area) (hereinafter, the “Noncompetition TermRestricted Period”), Executive agrees not tothe Restricted Seller (including any Affiliate) shall not, directly or indirectly, either through any form except for on behalf of ownership Buyer or as an individual, director, officer, principal, agent, employee, employer, adviser, consultant, shareholder, partner, member or in any other individual or representative capacity whatsoever, either for his own benefit or for the benefit of any person or entity, without with the prior written consent approval of Buyer:
(a) engage in, operate, control, carry on, manage, direct or otherwise conduct a Competitive Business within the Company Specified Geographic Area during the Restricted Period; or
(which consent may b) work for, be withheld employed by, accept employment with, serve as an agent for, agree to provide advisory services to, consult with or otherwise assist any Person, entity or organization that engages in its sole discretion)a Competitive Business within the Specified Geographic Area during the Restricted Period; or
(c) own, engage in finance, lend to, have an economic interest in, or become associated as a partner, owner, stockholder, member, or joint venturer, or otherwise have a business relationship with, any manner in Person, entity or organization (other than Buyer) engaged in, or about to become engaged in, a Competitive Business within the Business (as defined below) in Specified Geographic Area during the metropolitan areas of HoustonRestricted Period, A▇▇▇▇▇provided, ▇▇▇▇▇▇ or San Antoniohowever, Texas or any other metropolitan area in the United States where the Company owns or leases more than $10 million in gross asset value of assets as of the date of this Agreement or as of the date of termination. For purposes of this Section 9, “Business” means the acquisition, development, management, ownership, leasing and/or disposition of retail shopping centers and/or any capital raising activities related thereto. Executive understands and agrees that his covenants contained nothing in this Section 9 are being given in consideration of the numerous mutual promises and agreements contained in this Agreement between the Company and Executive5.2(c) shall prohibit Restricted Seller from holding, includingdirectly or indirectly, without limitation, those involving, employment, compensation, and Confidential Information, and in order up to protect the Company’s Confidential Information and other legitimate business interests and to reduce the likelihood of irreparable damage which would occur in the event such information is provided to or used by a competitor of the Company. Notwithstanding the foregoing, Executive shall not be deemed to have violated this Section 9 solely by reason of his passive ownership of 10% or less of the outstanding equity interests two percent (2%) of any public entity. Executive hereby acknowledges securities of an entity that is quoted on a national securities exchange or inter-dealer quotation system; or
(d) plan, develop, market, or make any preparations to provide assistance to any Competitive Business or to form a Competitive Business, including but not limited to any research or development efforts aimed at ultimately benefiting a Competitive Business, within the geographic boundaries, scope of prohibited activities and the time duration of the provisions of this Section 9 are reasonable and are no broader than are necessary to protect the legitimate business interests of the Company. This noncompetition provision can only be revoked or modified by a writing signed by both Executive and the Chief Executive Officer of the Company, as approved by the Board, which specifically states an intent to revoke or modify this provision. Executive acknowledges that the Company would not employ him or provide him with access to its Confidential Information but for his covenants or promises contained in this Section. The Company and Executive agree and stipulate that the agreements and covenants not to compete contained in this Section 9 hereof are fair and reasonable in light of all of the facts and circumstances of the relationship between Executive and the Company; provided however, Executive and the Company are aware that in certain circumstances courts have refused to enforce certain terms of agreements not to compete. Therefore, in furtherance of, and not in derogation of the provisions of this Section 9, the Company and Executive agree that in the event a court should decline to enforce any terms of any of the provisions of this Section 9, that this Section 9 shall be deemed to be modified or reformed to restrict Executive’s competition with the Company to the maximum extent, as to time, geography and business scope, which the court shall find enforceable; provided however, in no event shall the provisions of this Section 9 be deemed to be more restrictive to Executive than those contained herein. Executive agrees that Specified Geographic Area during the Noncompetition Term, he shall immediately notify the Company in writing of any employment, work or business he undertakes with or on behalf of any person (including himself) or entity, whether or not for compensationRestricted Period.
Appears in 1 contract
Sources: Asset Purchase Agreement (Fuqi International, Inc.)