Protective Covenants. The Executive acknowledges and agrees that solely by virtue of his employment by, and relationship with, the Employer, he has acquired and will acquire "Confidential Information," as hereinafter defined, as well as special knowledge of the Employer's relationships with its customers, and that, but for his association with the Employer, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer has long term, near-permanent relationships with its customers, and that those relationships were developed at great expense and difficulty to the Employer over several years of close and continuing involvement; (ii) that the Employer's relationships and goodwill with its customers are and will continue to be valuable, special and unique assets of the Employer; and (iii) that the Employer has the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing models, formulas, software applications and designs and other technologies and devices utilized in the management of communications. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and as a condition precedent to the Employer entering into this Agreement, and as an inducement to the Employer to do so, the Executive hereby represents, warrants, and covenants as follows: A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employer. B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses. C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound. D. The Executive agrees that, if Executive ceases to be employed by Employer for any reason, including without limitation the non-renewal of this Agreement by the Company, the Executive will not, for a period of two years , except on behalf of the Employer, anywhere in the United States of America or in any other place or venue where the Employer or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct or operate, its business prior to the date of the termination of Executive's employment: (1) directly or indirectly, contact, solicit or direct any person, firm, corporation, association or other entity to contact or solicit, any of the Employer's customers or prospective customers (as hereinafter defined) for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer to its customers during the term hereof; (2) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit any of the Employer's then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself or any company, individual or other entity; or (3) directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the design, manufacture, marketing, or servicing of products then constituting ten percent (10%) or more of the annual revenues of the Employer; or
Appears in 5 contracts
Sources: Employment Agreement (Metasolv Inc), Employment Agreement (Metasolv Inc), Employment Agreement (Metasolv Inc)
Protective Covenants. The Executive acknowledges and agrees that solely by virtue of his employment by, and relationship with, the Employer, he has acquired and will acquire "“Confidential Information," ” as hereinafter defined, as well as special knowledge of the Employer's ’s relationships with its customers, and that, but for his association with the Employer, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer has long term, near-permanent relationships with its customers, and that those relationships were developed at great expense and difficulty to the Employer over several years of close and continuing involvement; (ii) that the Employer's ’s relationships and goodwill with its customers are and will continue to be valuable, special and unique assets of the Employer; and (iii) that the Employer has the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing models, formulas, software applications and designs and other technologies and devices utilized in the management of communications. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and as a condition precedent to the Employer entering into this Agreement, and as an inducement to the Employer to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employer.
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.
D. The Executive agrees that, if Executive ceases to be employed by Employer for any reason, including without limitation the non-renewal of this Agreement by the Company, the Executive will not, for a period of two years , except on behalf of the Employer, anywhere in the United States of America or in any other place or venue where the Employer or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct or operate, its business prior to the date of the termination of Executive's ’s employment:
(1) for a period equal to the greater of (a) one year or (b) if compensation of two times Base Salary and target performance bonus is paid under Paragraph 8C, then two years, directly or indirectly, contact, solicit or direct any person, firm, corporation, association or other entity to contact or solicit, any of the Employer's ’s customers or prospective customers (as hereinafter defined) for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer to its customers during the term Term hereof;
(2) for a period of two years ,solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit any of the Employer's ’s then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself or any company, individual or other entity; or
(3) for a period equal to the greater of (a) one year or (b) if compensation of two times Base Salary and target performance bonus is paid under Paragraph 8C, then two years, directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the design, manufacture, marketing, or servicing of products then constituting ten percent (10%) or more of the annual revenues of the Employer; or
(4) for a period equal to the greater of (a) one year or (b) if compensation of two times Base Salary and target performance bonus is paid under Paragraph 8C, then two years, act as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the Employer’s customers or prospective customers (as hereinafter defined), with respect to or in any way with regard to any aspect of the Employer’s business and/or any other business activities in which the Employer engages during the Term hereof.
E. The Executive acknowledges and agrees that the scope described above is necessary and reasonable in order to protect the Employer in the conduct of its business and that, if the Executive becomes employed by another employer, he shall be required to disclose the existence of this Paragraph 9 to such employer and the Executive hereby consents to and the Employer is hereby given permission to disclose the existence of this Paragraph 9 to such employer.
F. For purposes of this Paragraph 9, “customer” shall be defined as any person, firm, corporation, association, or entity that purchased any type of product and/or service from the Employer or is or was doing business with the Employer or the Executive within the twelve (12) month period immediately preceding termination of the Executive’s employment. For purposes of this Paragraph 9, “prospective customer” shall be defined as any person, firm, corporation, association, or entity (i) contacted or solicited by the Executive (whether directly or indirectly) or (ii) to the Executive’s knowledge, contacted or solicited by any other employee or representative of the Employer, or (iii) who contacted the Executive (whether directly or indirectly) or (iv) to the Executive’s knowledge, who contacted the Employer within the twelve (12) month period immediately preceding termination of the Executive’s employment for the purpose of having such persons, firms, corporations, associations, or entities become a customer of the Employer.
G. The Executive agrees that both during his employment and thereafter the Executive will not, for any reason whatsoever, use for himself or disclose to any person not employed by the Employer any “Confidential Information” of the Employer acquired by the Executive during his relationship with the Employer, both prior to and during the Term of employment. The Executive further agrees to use Confidential Information solely for the purpose of performing duties with the Employer and further agrees not to use Confidential Information for his own private use or commercial purposes or in any way detrimental to the Employer. The Executive agrees that Confidential Information includes but is not limited to: (1) any financial, engineering, business, planning, operations, services, potential services, products, potential products, technical information and/or know-how, organization charts, formulas, business plans, production, purchasing, marketing, pricing, sales, profit, personnel, customer, broker, supplier, or other lists or information of the Employer; (2) any papers, data, records, processes, methods, techniques, systems, models, samples, devices, equipment, compilations, invoices, customer lists, or documents of the Employer; (3) any confidential information or trade secrets of any third party provided to the Employer in confidence or subject to other use or disclosure restrictions or limitations; and (4) any other information, written, oral, or electronic, whether existing now or at some time in the future, whether pertaining to current or future developments, and whether previously accessed during the Executive’s tenure with the Employer or to be accessed during his future employment with the Employer, which pertains to the Employer’s affairs or interests or with whom or how the Employer does business. The Employer acknowledges and agrees that Confidential Information does not include (x) information properly in the public domain, or (y) information in the Executive’s possession prior to the date of his original employment with the Employer, except to the extent that such information is or has become a trade secret of the Employer or is or otherwise has become the property of the Employer.
H. In the event that the Executive intends to communicate information to any individual(s), entity or entities (other than the Employer), to permit access by any individual(s), entity or entities (other than the Employer), or to use information for the Executive’s own account or for the account of any individual(s), entity or entities (other than the Employer) and such information would be Confidential Information hereunder but for the exceptions set out at (x) and (y) of Paragraph 9G of this Agreement, the Executive shall notify the Employer of such intent in writing, including a description of such information, no less than fifteen (15) days prior to such communication, access or use.
I. During and after the term of employment hereunder, the Executive will not remove from the Employer’s premises any documents, records, files, notebooks, correspondence, reports, video or audio recordings, computer printouts, computer programs, computer software, price lists, microfilm, drawings or other similar documents containing Confidential Information, including copies thereof, whether prepared by him or others, except as his duty shall require, and in such cases, will promptly return such items to the Employer. Upon termination of his employment with the Employer, all such items including summaries or copies thereof, then in the Executive’s possession, shall be returned to the Employer immediately.
J. The Executive recognizes and agrees that all ideas, inventions, patents, copyrights, copyright designs, trade secrets, trademarks, processes, discoveries, enhancements, software, source code, catalogues, prints, business applications, plans, writings, and other developments or improvements and all other intellectual property and proprietary rights and any derivative work based thereon (the “Inventions”) made, conceived, or completed by the Executive, alone or with others, during the term of his employment, whether or not during working hours, that are within the scope of the Employer’s business operations or that relate to any of the Employer’s work or projects (including any and all inventions based wholly or in part upon ideas conceived during the Executive’s employment with the Employer), are the sole and exclusive property of the Employer. The Executive further agrees that (1) he will promptly disclose all Inventions to the Employer and hereby assigns to the Employer all present and future rights he has or may have in those Inventions, including without limitation those relating to patent, copyright, trademark or trade secrets; and (2) all of the Inventions eligible under the copyright laws are “work made for hire.” At the request of the Employer, the Executive will do all things deemed by the Employer to be reasonably necessary to perfect title to the Inventions in the Employer and to assist in obtaining for the Employer such patents, copyrights or other protection as may be provided under law and desired by the Employer, including but not limited to executing and signing any and all relevant applications, assignments or other instruments. Notwithstanding the foregoing, the Employer hereby notifies the Executive that the provisions of this Paragraph 9 shall not apply to any Inventions for which no equipment, supplies, facility or trade secret information of the Employer was used and which were developed entirely on the Executive’s own time, unless (1) the Invention relates (i) to the business of the Employer, or (ii) to actual or demonstrably anticipated research or development of the Employer, or (2) the Invention results from any work performed by the Executive for the Employer.
K. The Executive acknowledges and agrees that all customer lists, supplier lists, and customer and supplier information, including, without limitation, addresses and telephone numbers, are and shall remain the exclusive property of the Employer, regardless of whether such information was developed, purchased, acquired, or otherwise obtained by the Employer or the Executive. The Executive also agrees to furnish to the Employer on demand at any time during the Term of employment, and upon the termination of employment, any other records, notes, computer printouts, computer programs, computer software, price lists, microfilm, or any other documents related to the Employer’s business, including originals and copies thereof. The Executive recognizes and agrees that he has no expectation of privacy with respect to the Employer’s telecommunications, networking or information processing systems (including, without limitation, stored computer files, email messages and voice messages) and that the Executive’s activity and any files or messages on or using any of those systems may be monitored at any time without notice.
L. The Executive acknowledges that he may become aware of “material” nonpublic information relating to customers whose stock is publicly traded. The Executive acknowledges that he is prohibited by law as well as by Employer policy from trading in the shares of such customers while in possession of such information or directly or indirectly disclosing such information to any other persons so that they may trade in these shares. For purposes of this Paragraph 9L, “material” information may include any information, positive or negative, which might be of significance to an investor in determining whether to purchase, sell or hold the stock of publicly traded customers. Information may be significant for this purpose even if it would not alone determine the investor’s decision. Examples include a potential business acquisition, internal financial information that departs in any way from what the market would expect, the acquisition or loss of a major contract, or an important financing transaction.
M. The Employer does not wish to incorporate any unlicensed or unauthorized material into its products or services or those of its affiliates. Therefore, the Executive agrees that he will not knowingly disclose to the Employer, use in the Employer’s business, or cause the Employer to use, any information or material which is confidential or proprietary to any third party including, but not limited to, any former employer, competitor or client, unless the Employer has a right to receive and use such information. The Executive will not incorporate into his work any material which is subject to the copyrights of any third party unless the Employer has a written agreement with such third party or otherwise has the right to receive and use such information.
N. It is agreed that any breach or anticipated or threatened breach of any of the Executive’s covenants contained in this Paragraph 9 will result in irreparable harm and continuing damages to the Employer and its business and that the Employer’s remedy at law for
Appears in 4 contracts
Sources: Employment Agreement (Metasolv Inc), Employment Agreement (Metasolv Inc), Employment Agreement (Metasolv Inc)
Protective Covenants. The Executive acknowledges and agrees that -------------------- solely by virtue of his employment by, and relationship with, the Employer, he has acquired and will acquire "Confidential Information," as hereinafter defined, as well as special knowledge of the Employer's relationships with its customers, and that, but for his association with the Employer, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer has long term, near-permanent relationships with its customers, and that those relationships were developed at great expense and difficulty to the Employer over several years of close and continuing involvement; (ii) that the Employer's relationships and goodwill with its customers are and will continue to be valuable, special and unique assets of the Employer; and (iii) that the Employer has the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing models, formulas, software applications and designs and other technologies and devices utilized in the management of communications. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and as a condition precedent to the Employer entering into this Agreement, and as an inducement to the Employer to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employer.
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.
D. The Executive agrees that, if Executive ceases during the time of his employment with the Employer and (i) in the event the Executive's services are terminated pursuant to be employed by Employer for any reasonParagraphs 7A, including without limitation the non-renewal 7D or 7E of this Agreement by Agreement, for such period as the CompanyExecutive is receiving termination pay under Paragraph 8 of this Agreement, or (ii) in the event the Executive's services are terminated pursuant to Paragraphs 7B or 7C of this Agreement, for a period of one (1) year after such termination, the Executive will not, for a period of two years , except on behalf of the Employer, anywhere in the United States of America or in any other place or venue where the Employer or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct or operate, its business prior to the date of the Executive's termination of Executive's employment:
(1) directly or indirectly, contact, solicit or direct any person, firm, corporation, association or other entity to contact or solicit, any of the Employer's customers or prospective customers (as hereinafter defined) for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer to its customers during the term hereof;
(2) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit any of the Employer's then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself or any company, individual or other entity; or
(3) directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the design, manufacture, marketing, or servicing of products then constituting ten percent (10%) or more of the annual revenues of the Employer; or
(4) act as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the Employer's customers or prospective customers (as hereinafter defined), with respect to or in any way with regard to any aspect of the Employer's business and/or any other business activities in which the Employer engages during the term hereof.
E. The Executive acknowledges and agrees that the scope described above is necessary and reasonable in order to protect the Employer in the conduct of its business and that, if the Executive becomes employed by another employer, he shall be required to disclose the existence of this Paragraph 9 to such employer and the Executive hereby consents to and the Employer is hereby given permission to disclose the existence of this Paragraph 9 to such employer.
F. For purposes of this Paragraph 9, "customer" shall be defined as any person, firm, corporation, association, or entity that purchased any type of product and/or service from the Employer or is or was doing business with the Employer or the Executive within the twelve (12) month period immediately preceding termination of the Executive's employment. For purposes of this Paragraph 9, "prospective customer" shall be defined as any person, firm, corporation, association, or entity (i) contacted or solicited by the Executive (whether directly or indirectly) or (ii) to the Executive's knowledge, contacted or solicited by any other employee or representative of the Employer, or (iii) who contacted the Executive (whether directly or indirectly) or (iv) to the Executive's knowledge, who contacted the Employer within the twelve (12) month period immediately preceding termination of the Executive's employment for the purpose of having such persons, firms, corporations, associations, or entities become a customer of the Employer.
Appears in 3 contracts
Sources: Employment Agreement (Metasolv Inc), Employment Agreement (Metasolv Inc), Employment Agreement (Metasolv Inc)
Protective Covenants. The Executive acknowledges and agrees that solely by virtue of his employment by, and relationship with, the Employerwith Ultrak, he has acquired and will acquire "Confidential Information," ", as hereinafter defined, as well as special knowledge of the Employer's relationships with its customerscustomers and business brokers, and that, but for his association with the Employer, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer has long term, near-permanent relationships with its customers, and that those relationships were developed at great expense and difficulty to the Employer over several years of close and continuing involvement; (ii) that the Employer's relationships and goodwill with its customers are and will continue to be valuable, special and unique assets of the Employer and that the identity of its customers is kept under tight security with the Employer and cannot be readily ascertained from publicly available materials or from materials available to the Employer's competitors; and (iii) that the Employer has the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing models. The Executive acknowledges and agrees that by virtue of his employment by and relationship with Ultrak that Ultrak agrees to provide the Executive with specialized training and instruction regarding Ultrak's operations, formulasproducts sold and serviced by Ultrak, software applications as well as marketing and designs operational techniques and other technologies strategies to the extent applicable to the Executive's employment with Ultrak. This training may be provided through direct experience or otherwise. The Executive acknowledges and devices utilized agrees that by virtue of his employment by and relationship with Ultrak that Ultrak agrees to provide the Executive with an interest in the management growth of communicationsthe goodwill of Ultrak through his employment. Ultrak also agrees to provide expense reimbursements in accordance with Ultrak policy, access to confidential information, and contact with customers, contractors and vendors in order to help Ultrak develop goodwill for Ultrak. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is are hereby acknowledged, and as a condition precedent to the Employer entering into this Agreement, and as an inducement to the Employer to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employer.;
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.;
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.;
D. The Executive agrees that, if Executive ceases to be employed by Employer during the time of his employment and for any reasona period of one (1) year after the termination of the Executive's employment under Paragraph 7A, including without limitation the non-renewal of this Agreement by the CompanyC, D, E or F, the Executive will not, for a period of two years , except on behalf of the Employer, anywhere in the United States of America or in assist a Competing Business (as defined below) by doing any other place or venue where the Employer or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct or operate, its business prior to the date of the termination of Executive's employmentfollowing prohibited acts:
(1) directly or indirectly, contactcontact or solicit, solicit or direct any person, firm, corporation, association or other entity one else to contact or solicit, any of the Employer's customers Covered Customer or prospective customers Prospective Customer (as hereinafter defineddefined below) or Business Brokers (as defined below) for the purpose of providing selling or attempting to sell, any products and/or services that are the same as or so similar to the products and services provided by the Employer to its customers that they would displace or reduce the volume of products or services sold by Employer to its customers during the term hereof;. In addition, the Executive will not identify or disclose any such Covered Business Brokers, Covered Customers or Prospective Customers, or any part thereof, as being a business broker, customer or prospective customer of Employer to any person, firm, corporation, association, or other entity engaged in a Competing Business; or
(2) solicit participate in a Competing Business by supervising, or accept if offered to himproviding, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit any of the Employer's then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself or any company, individual or other entity; or
(3) directly or indirectly, whether as an investor services or assistance to a Competing Business in a position that involves (excluding investments representing a) duties or functions that are the same or substantially similar in their purpose to those provided by Executive to Employer, (b) duties or functions that would involve input into or direction of the Competing Business' decisions regarding, but not limited to, marketing, product or service development, engineering or research and development, financial planning, organizational change or restructuring, customer solicitations, and (c) direction or control over communications with Covered Customers and Prospective Customers, and Covered Brokers; provided, however, that nothing herein shall prevent Executive from directly owning less than one percent (1%) of the common stock of a public company)publicly traded Competing Business or indirect ownership of an interest in a Competing Business through mutual funds or similar investment entities; or
(3) solicit or otherwise induce, lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson on his own behalf or in on behalf of any other capacityperson or entity, whether part-time or full-time, become associated with any business involved in the design, manufacture, marketing, or servicing of products then constituting ten percent (10%) or more person who is any of the annual revenues of Employer's employees to terminate employment with the Employer; or
(4) take any action as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the Employer's business brokers, customers, or prospective customers to induce the Employer's business broker, customer or prospective customer at issue to terminate or reduce in any way any aspect of the Employer's ongoing sales or services, or other business activities with the customer, broker or prospective customer that the Executive is then working for; or
(5) use any of the specialized training he has received from Ultrak; or
(6) use the goodwill developed with Ultrak's customers, contractors and vendors. The foregoing restrictions in Paragraphs 9D(1)-(4) apply to activities by Executive anywhere within a fifty (50) mile radius of any office of Employer; and at the addresses or locations where Covered Customers and Prospective Customers and Covered Brokers are doing business at the time of the Executive's termination from employment or during a period of six (6) months prior to the Executive's termination from employment unless otherwise modified and agreed to in writing and authorized by the Employer's Chief Executive Officer.
E. The Executive acknowledges and agrees that the scope described above is necessary and reasonable in order to protect the Employer in the conduct of its business and that, if the Executive becomes employed by another employer, he shall be required to disclose the existence of this Paragraph 9 to such employer and the Executive hereby consents to and the Employer is hereby given permission to disclose the existence of this Paragraph 9 to such employer;
F. A Competing Business," as referred to in Paragraph 9 and its subparts, means any person or entity engaged in the business of providing competing goods or services that are the same or similar to the goods or services sold by Employer to its customers that they would displace or reduce the volume of products or services sold by the Employer to its customers. A "Covered Customer or Prospective Customer," as referred to in Paragraph 9 and its subparts, means any person or entity that (a) hold a contract with Employer, or requested a contract proposal, or had a contract proposal made to it by Employer, within the previous six (6) months; and (b) that Executive either had contact with or received confidential information about during the last six (6) months of Executive's employment with Employer. A "Covered Broker," as referred to in Paragraph 9 and its subparts, refers to any person or entity who, within the preceding twelve (12) months in the ordinary course of business for that person or entity, (a) acted as an agent or intermediary to facilitate the sale of goods or services sold by Employer; and, (b) had contact with Executive or was the subject of confidential information handled by the Executive.
Appears in 2 contracts
Sources: Employment Agreement (Ultrak Inc), Employment Agreement (Ultrak Inc)
Protective Covenants. The Executive acknowledges and agrees that solely by virtue of his her employment by, and relationship with, the EmployerCompany, he has acquired and will acquire "“Confidential Information," ”, as hereinafter defined, as well as special knowledge of the Employer's Company’s relationships with its customerscustomers and suppliers, and that, but for his association with the EmployerCompany, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer Company has long term, near-permanent relationships with its customerscustomers and suppliers, and that those relationships were developed at great expense and difficulty to the Employer Company over several years of close and continuing involvement; and (ii) that the Employer's Company’s relationships and goodwill with its customers and suppliers are and will continue to be valuable, special and unique assets of the Employer; and (iii) that the Employer has the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing models, formulas, software applications and designs and other technologies and devices utilized in the management of communicationsCompany. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and as a condition precedent to the Employer Company entering into this Agreement, and as an inducement to the Employer Company to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him his hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employerreasonable.
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer Company of, and provided the Employer Company with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.
D. The In consideration for any amounts due to the Executive under Paragraph 7 of this Agreement, the Executive agrees that, if Executive ceases to be employed by Employer for any reasonduring the time of his employment with the Company and, including without limitation the non-renewal of except as otherwise set forth in this Agreement by the Company, the Executive will notParagraph 8D, for a period of two years , except on behalf twelve (12) months after a voluntary or involuntary termination of the EmployerExecutive’s employment hereunder, for any reason whatsoever or for no reason, the Executive shall not: (1) engage in any of the activities listed in subparagraphs D(i) and D(ii) below anywhere in the United States of America or in any other place or venue where the Employer Company or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct during such period conducts or operateoperates, its business prior to the date of the Executive’s termination of Executive's employment, or (2) engage in any of the activities listed in subparagraphs D(iii) and D(iv) below anywhere in the State of Florida or any other state that the Company does Business (as defined below) during the Term of this Agreement. The Executive shall not:
(1) i. directly or indirectly, contact, solicit or accept if offered to the Executive, or direct any person, firm, corporation, association or other entity to contact contact, solicit or solicitaccept if offered to it, any of the Employer's customers Company’s customers, prospective customers, or prospective customers suppliers (as hereinafter defined) for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer Company to its customers during the term hereof;; or
(2) ii. solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who the Executive knows or should have known is a then current employee of the Employer Company (or was an employee of the Employer Company during the year preceding such solicitation), nor solicit any of the Employer's Company’s then current employees (or an individual who was employed by or engaged by the Employer Company during the year preceding such solicitation) to terminate employment or an engagement with the EmployerCompany, nor agree to hire any then current employee (or an individual who was an employee of the Employer Company during the year preceding such hire) of the Employer Company into employment with himself or any company, individual or other entity; or
(3) iii. directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any real estate brokerage business or any business involved in the development, design, manufactureconstruction, operation or sales of: (a) residential homes or communities, (b) real estate, or (c) golf courses (the “Business”);
iv. act as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the Company’s customers, prospective customers, or suppliers with respect to or in any way with regard to any aspect of the Business. Notwithstanding the foregoing, this Paragraph 8D shall not apply to any activities listed in subparagraphs D(i) through D(iv), which the Executive engages in on behalf of the Company during the time of his employment with the Company. Subparagraphs D(i), D(iii) and D(iv) shall only apply if the Executive’s termination of employment occurs prior to the end of the Term and, thereafter, such subparagraphs shall be null and void. In the event of any breach of this subparagraph D, the Executive agrees that the twelve (12) month restricted period shall be tolled during the time of such breach.
E. The Executive acknowledges and agrees that the scope described above is necessary and reasonable in order to protect the Company in the conduct of its business and that, if the Executive becomes employed by another employer, he shall be required to disclose the existence of this Paragraph 8 to such employer and the Executive hereby consents to and the Company is hereby given permission to disclose the existence of this Paragraph 8 to such employer.
F. For purposes of this Paragraph 8, “customer” shall be defined as any person, firm, corporation, association, or entity that is or was doing business with the Company within the twelve (12) month period immediately preceding termination of the Executive’s employment. For purposes of this Paragraph 8, “prospective customer” shall be defined as any person, firm, corporation, association, or entity contacted or solicited by the Company or the Executive (whether directly or indirectly) or who contacted the Company or the Executive (whether directly or indirectly) within the twelve (12) month period immediately preceding termination of the Executive’s employment for the purpose of having such persons, firms, corporations, associations, or entities become a customer of the Company. For purposes of this Paragraph 8, “supplier” shall be defined as any person, firm, corporation, association, or entity who is or was doing business with the Company or who was contacted or solicited by the Company or the Executive on Company’s behalf (whether directly or indirectly) or who contacted or solicited the Company or the Executive for Company work (whether directly or indirectly) within the twelve (12) month period immediately preceding termination of the Executive’s employment.
G. The Executive agrees that both during his employment and thereafter the Executive will not, for any reason whatsoever, use for himself or disclose to any person not employed by the Company any “Confidential Information” of the Company acquired by the Executive during his relationship with the Company, both prior to and during the Term of this Agreement, except as specifically provided herein. The Executive further agrees to use Confidential Information solely for the purpose of performing duties with, or for, the Company and further agrees not to use Confidential Information for his own private use or commercial purposes or in any way detrimental to the Company. The Executive agrees that “Confidential Information” includes but is not limited to: (1) any financial, engineering, business, planning, operations, services, potential services, products, potential products, technical information and/or know-how, organization charts, formulas, business plans, production, purchasing, marketing, pricing, sales, profit, personnel, customer, broker, supplier, or servicing of products then constituting ten percent (10%) other lists or more information of the annual revenues Company; (2) any papers, data, records, processes, methods, techniques, systems, models, samples, devices, equipment, compilations, invoices, customer lists, or documents of the EmployerCompany; or(3) any confidential information or trade secrets of any third party provided to the Company in confidence or subject to other use or disclosure restrictions or limitations; and (4) any other information, written, oral, or electronic, whether existing now or at some time in the future, whether pertaining to current or future developments, and whether previously accessed during the Executive’s tenure with the Company or to be accessed during his future employment with the Company, which pertains to the Company’s affairs or interests or with whom or how the Company does business. The Company acknowledges and agrees that Confidential Information does not include (i) information properly in the public domain, or (ii) information in the Executive’s possession prior to the date of his original employment with the Company (or its predecessors), except to the extent that such information is or has become a trade secret of the Company or is or otherwise has become the property of the Company. Notwithstanding anything to the contrary above, from time to time in the execution of Executive’s duties hereunder, Executive may disclose Confidential Information to unaffiliated third parties in connection with potential business transactions on behalf of Company (for example, an asset sale or acquisition), provided that any such third parties execute a confidentiality agreement with respect to such Confidential Information.
H. Except as otherwise permitted in G above, in the event that the Executive intends to communicate information to any individual(s), entity or entities (other than the Company), to permit access by any individual(s), entity or entities (other than the Company), or to use information for the Executive’s own account or for the account of any individual(s), entity or entities (other than the Company) and such information would be Confidential Information hereunder but for the exceptions set out at (i) and (ii) of Paragraph G of this Agreement, the Executive shall notify the Company of such intent in writing, including a description of such information, no less than fifteen (15) days prior to such communication, access or use.
I. During and after the term of employment hereunder, the Executive will not remove from the Company’s premises any documents, records, files, notebooks, correspondence, reports, video or audio recordings, computer printouts, computer programs, computer software, price lists, microfilm, drawings or other similar documents containing Confidential Information, including copies thereof, whether prepared by his or others, except in connection with the performance of his duties, and in such cases, will promptly return such items to the Company. Upon termination of his employment with the Company, all such items including summaries or copies thereof, then in the Executive’s possession, shall be returned to the Company immediately.
J. The Executive recognizes and agrees that all ideas, inventions, patents, copyrights, copyright designs, trade secrets, trademarks, processes, discoveries, enhancements, software, source code, catalogues, prints, business applications, plans, writings, and other developments or improvements and all other intellectual property and proprietary rights and any derivative work based thereon (the “Inventions”) made, conceived, or completed by the Executive, alone or with others, during the term of his employment, whether or not during working hours, that are within the scope of the Company’s business operations or that relate to any of the Company’s work or projects (including any and all inventions based wholly or in part upon ideas conceived during the Executive’s employment with the Company), are the sole and exclusive property of the Company. The Executive further agrees that (1) he will promptly disclose all Inventions to the Company and hereby assigns to the Company all present and future rights he has or may have in those Inventions, including without limitation those relating to patent, copyright, trademark or trade secrets; and (2) all of the Inventions eligible under the copyright laws are “work made for hire.” At the request of the Company, the Executive will do all things deemed by the Company to be reasonably necessary to perfect title to the Inventions in the Company and to assist in obtaining for the Company such patents, copyrights or other protection as may be provided under law and desired by the Company, including but not limited to executing and signing any and all relevant applications, assignments or other instruments. Notwithstanding the foregoing, the Company hereby notifies the Executive that the provisions of this Paragraph 8 shall not apply to any Inventions for which no equipment, supplies, facility or trade secret information of the Company was used and which were developed entirely on the Executive’s own time, unless (1) the Invention relates (i) to the business of the Company, or (ii) to actual or demonstrably anticipated research or development of the Company, or (2) the Invention results from any work performed by the Executive for the Company.
K. The Executive acknowledges and agrees that all customer lists, supplier lists, and customer and supplier information, including, without limitation, addresses and telephone numbers, are and shall remain the exclusive property of the Company, regardless of whether such information was developed, purchased, acquired, or otherwise obtained by the Company or the Executive. The Executive agrees to furnish to the Company on demand at any time during the Term of this Agreement, and upon termination of this Agreement, his complete list of the correct names and places of business and telephone numbers of all of its customers served by him, including all copies thereof wherever located. The Executive recognizes and agrees that he has no expectation of privacy with respect to the Company’s telecommunications, networking or information processing systems (including, without limitation, stored computer files, email messages and voice messages) and that the Executive’s activity and any files or messages on or using any of those systems may be monitored at any time without notice.
L. The Company does not wish to incorporate any unlicensed or unauthorized material into its products or services or those of its subsidiaries. Therefore, the Executive agrees that he will not knowingly disclose to the Company, use in the Company’s business, or cause the Company to use, any information or material which is confidential or proprietary to any third party including, but not limited to, any former employer, competitor or client, unless the Company has a right to receive and use such information. The Executive will not incorporate into his work any material which is subject to the copyrights of any third party unless the Company has a written agreement with such third party or otherwise has the right to receive and use such information.
M. It is agreed that any breach or threatened breach of any of the Executive’s covenants contained in this Paragraph 8 will result in irreparable harm and continuing damages to the Company and its business and that the Company’s remedy at law for any such breach or threatened breach will be inadequate and, accordingly, in addition to any and all oth
Appears in 1 contract
Protective Covenants. The Executive acknowledges and agrees that solely by virtue of his employment by, and relationship with, the Employer, he has acquired and will continue to acquire "Confidential Information," ", as hereinafter defined, as well as special knowledge of the Employer's relationships with its customerscustomers and business brokers, and that, but for his association with the Employer, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer has long term, near-permanent relationships with its customerscustomers and business brokers, and that those relationships were developed at great expense and difficulty to the Employer over several years of close and continuing involvement; (ii) that the Employer's relationships and goodwill with its customers and business brokers are and will continue to be valuable, special and unique assets of the Employer and that the identity of its customers and business brokers is kept under tight security with the Employer and cannot be readily ascertained from publicly available materials or from materials available to the Employer's competitors; and (iii) that the Employer has the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing modelsmarketing strategies and research information and benchmarks; and plans, formulasprocesses, software applications customer networks and designs and other technologies and devices utilized in the management of communicationsprotocols. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is are hereby acknowledged, and as a condition precedent to the Employer entering into the Prior Agreement and this Agreement, and as an inducement to the Employer to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employer.;
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.;
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.;
D. The Executive agrees that, if Executive ceases to be employed by Employer during the time of his employment and for a period of one (1) year after the termination of the Executive's employment hereunder for any reason whatsoever or for no reason, including without limitation the non-renewal of this Agreement by the Companywhether voluntary or involuntary, the Executive will not, for a period of two years , except on behalf of the Employer, anywhere in the United States of America or in any other place or venue where the Employer or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct or operate, its business prior to the date of the Executive's termination of Executive's employment:
(1) directly or indirectly, contact, solicit or direct any person, firm, corporation, association or other entity corporation to contact or solicit, any of the Employer's customers customers, prospective customers, or prospective customers business brokers (as hereinafter defined) for the purpose of providing selling or attempting to sell, any products and/or services that are the same as or similar to the products and services provided by the Employer to its customers during the term hereof;. In addition, the Executive will not disclose the identity of any such business brokers, customers, or prospective customers, or any part thereof, to any person, firm, corporation, association, or other entity for any reason or purpose whatsoever; and
(2) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit any of the Employer's then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself or any company, individual or other entity; or
(3) directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the design, manufacture, marketing, or servicing of products then constituting ten percent (10%) or more of the annual revenues sales of the Employer; orand
(3) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is an employee of the Employer, nor solicit any of the Employer's employees to terminate employment with the Employer, nor agree to hire any employee of the Employer into employment with himself or any company, individual or other entity; and
(4) act as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the Employer's business brokers, customers, or prospective customers (as hereinafter defined), with respect to or in any way with regard to any aspect of the Employer's business and/or any other business activities in which the Employer engages during the term hereof;
E. The Executive acknowledges and agrees that the scope described above is necessary and reasonable in order to protect the Employer in the conduct of its business and that, if the Executive becomes employed by another employer, he shall be required to disclose the existence of this Paragraph 9 to such employer and the Executive hereby consents to and the Employer is hereby given permission to disclose the existence of this Paragraph 9 to such employer;
F. For purposes of this Paragraph 9, "customer" shall be defined as any person, firm, or entity that purchased any type of product and/or service from the Employer or is or was doing business with the Employer or the Executive within the twelve (12) month period immediately preceding termination of the Executive's employment. For purposes of this Paragraph 9, "prospective customer" shall be defined as any person, firm, or entity contacted or solicited by the Employer or the Executive (whether directly or indirectly) or who contacted the Employer or the Executive (whether directly or indirectly) within the twelve (12) month period immediately preceding termination of the Executive's employment for the purpose of having such persons, firms, or entities become a customer of the Employer. For purposes of this Paragraph 9, "business broker" shall be defined as any person, firm, or entity who is or was doing business with the Employer or the Executive or who was contacted or solicited by the Employer or the Executive (whether directly or indirectly) or who contacted or solicited the Employer or the Executive (whether directly or indirectly) within the thirty-six (36) month period immediately preceding termination of the Executive's employment;
G. The Executive agrees that both during his employment and thereafter the Executive will not, for any reason whatsoever, use for himself or disclose to any person not employed by the Employer any "Confidential Information" of the Employer acquired by the Executive during his relationship with the Employer. The Executive further agrees to use Confidential Information solely for the purpose of performing duties with the Employer and further agrees not to use Confidential Information for his own private use or commercial purposes or in any way detrimental to the Employer. The Executive agrees that "Confidential Information" includes but is not limited to: (1) any financial, business, planning, operations, services, potential services, products, potential products, technical information and/or know-how, formulas, production, purchasing, marketing, sales, personnel, customer, broker, supplier, or other information of the Employer; (2) any papers, data, records, processes, methods, techniques, systems, models, samples, devices, equipment, compilations, invoices, customer lists, or documents of the Employer; (3) any confidential information or trade secrets of any third party provided to the Employer in confidence or subject to other use or disclosure restrictions or limitations; and (4) any other information, written, oral, or electronic, whether existing now or at some time in the future, whether pertaining to current or future developments, which pertains to the Employer's affairs or interests or with whom or how the Employer does business. The Employer acknowledges and agrees that Confidential Information does not include (1) information properly in the public domain, or (2) information in the Executive's possession prior to the date of his original employment with the Employer;
Appears in 1 contract
Sources: Employment Agreement (System Software Associates Inc)
Protective Covenants. The Executive acknowledges and agrees that solely by virtue of his employment by, and relationship with, the Employer, he has acquired and will acquire "“Confidential Information," ”, as hereinafter defined, as well as special knowledge of the Employer's ’s relationships with its customerscustomers and suppliers, and that, but for his association with the Employer, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer has long term, near-permanent relationships with its customerscustomers and suppliers, and that those relationships were developed at great expense and difficulty to the Employer over several years of close and continuing involvement; (ii) that the Employer's ’s relationships and goodwill with its customers and suppliers are and will continue to be valuable, special and unique assets of the Employer and that the identity of its customers and suppliers is kept under tight security with the Employer and cannot be readily ascertained from publicly available materials or from materials available to the Employer’s competitors; and (iii) that the Employer has the following certain protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing models, formulas, software applications and designs and other technologies and devices utilized in the management of communications. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and as a condition precedent to the Employer entering into this Agreement, and as an inducement to the Employer to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employer.
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.
D. The Executive agrees that, during the period of his employment with the Employer and, except as set forth below in this subparagraph D, for a period of three (3) months after the termination of the Executive’s employment hereunder (or, if Executive ceases to be employed by Employer longer, until December 31, 2010) (the “Restricted Period”) for any reason whatsoever or for no reason, including without limitation the non-renewal of this Agreement by the Companywhether voluntary or involuntary, the Executive will not, for a period of two years , except on behalf of the Employer, anywhere in the United States of America or in any other place or venue where the Employer or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct or operate, its business prior to the date of the Executive’s termination of Executive's employment:
(1) directly or indirectly, contact, solicit or accept if offered to the Executive, or direct any person, firm, corporation, association or other entity to contact contact, solicit or solicitaccept if offered to it, any of the Employer's customers ’s customers, prospective customers, or prospective customers suppliers (as hereinafter defined) for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer to its customers during the term hereof;; or
(2) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit any of the Employer's ’s then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself or any company, individual or other entity; or
(3) directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the design, manufacture, marketing, or servicing of products then constituting ten percent (10%) or more of the annual revenues of the Employer; or
(4) act as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the Employer’s customers, prospective customers, or suppliers (as hereinafter defined), with respect to or in any way with regard to any aspect of the Employer’s business and/or any other business activities in which the Employer engages during the term hereof. The foregoing notwithstanding, in the event of a termination of employment pursuant to Paragraph 7D or 7E after December 31, 2010, the Restricted Period may, in the Employer’s discretion, be shortened or eliminated and a corresponding reduction or elimination shall be made to the period of time over which the Employer is otherwise obligated to continue the Executive’s Base Salary pursuant to Paragraph 8B. In the event of any breach of this subparagraph D, the Executive agrees that the applicable Restricted Period shall be tolled during the time of such breach.
E. The Executive acknowledges and agrees that the scope described above is necessary and reasonable in order to protect the Employer in the conduct of its business and that, if the Executive becomes employed by another employer, he shall be required to disclose the existence of this Paragraph 9 to such employer and the Executive hereby consents to and the Employer is hereby given permission to disclose the existence of this Paragraph 9 to such employer.
F. For purposes of this Paragraph 9, “customer” shall be defined as any person, firm, corporation, association, or entity that purchased any type of product and/or service from the Employer or is or was doing business with the Employer or the Executive within the twelve (12) month period immediately preceding termination of the Executive’s employment. For purposes of this Paragraph 9, “prospective customer” shall be defined as any person, firm, corporation, association, or entity contacted or solicited by the Employer or the Executive (whether directly or indirectly) or who contacted the Employer or the Executive (whether directly or indirectly) within the twelve (12) month period immediately preceding termination of the Executive’s employment for the purpose of having such persons, firms, corporations, associations, or entities become a customer of the Employer. For purposes of this Paragraph 9, “supplier” shall be defined as any person, firm, corporation, association, or entity who is or was doing business with the Employer or the Executive or who was contacted or solicited by the Employer or the Executive (whether directly or indirectly) or who contacted or solicited the Employer or the Executive (whether directly or indirectly) within the twelve (12) month period immediately preceding termination of the Executive’s employment.
G. The Executive agrees that during his employment (other than to the extent reasonably necessary to perform his services under this Agreement) and thereafter the Executive will not, for any reason whatsoever, use for himself or disclose to any person not employed by the Employer any “Confidential Information” of the Employer acquired by the Executive during his relationship with the Employer, both prior to and during the period of this Agreement. The Executive further agrees to use Confidential Information solely for the purpose of performing duties with, or for, the Employer and further agrees not to use Confidential Information for his own private use or commercial purposes or in any way detrimental to the Employer. The Executive agrees that “Confidential Information” includes but is not limited to: (1) any financial, engineering, business, planning, operations, services, potential services, products, potential products, technical information and/or know-how, organization charts, formulas, business plans, production, purchasing, marketing, pricing, sales, profit, personnel, customer, broker, supplier, or other lists or information of the Employer; (2) any papers, data, records, processes, methods, techniques, systems, models, samples, devices, equipment, compilations, invoices, customer lists, or documents of the Employer; (3) any confidential information or trade secrets of any third party provided to the Employer in confidence or subject to other use or disclosure restrictions or limitations; and (4) any other information, written, oral, or electronic, whether existing now or at some time in the future, whether pertaining to current or future developments, and whether previously accessed during the Executive’s tenure with the Employer or to be accessed during his future employment with the Employer, which pertains to the Employer’s affairs or interests or with whom or how the Employer does business. The Employer acknowledges and agrees that Confidential Information does not include (i) information properly in the public domain, or (ii) information in the Executive’s possession prior to the date of his original employment with the Employer, except to the extent that such information is or has become a trade secret of the Employer or is or otherwise has become the property of the Employer.
H. During and after the period of employment hereunder, the Executive will not remove from the Employer’s premises any documents, records, files, notebooks, correspondence, reports, video or audio recordings, computer printouts, computer programs, computer software, price lists, microfilm, drawings or other similar documents containing Confidential Information, including copies thereof, whether prepared by him or others, except as his duty shall require, and in such cases, will promptly return such items to the Employer. Upon termination of his employment with the Employer, all such items including summaries or copies thereof, then in the Executive’s possession, shall be returned to the Employer immediately.
I. The Executive recognizes and agrees that all ideas, inventions, patents, copyrights, copyright designs, trade secrets, trademarks, processes, discoveries, enhancements, software, source code, catalogues, prints, business applications, plans, writings, and other developments or improvements and all other intellectual property and proprietary rights and any derivative work based thereon (the “Inventions”) made, conceived, or completed by the Executive, alone or with others, during the period of his employment, whether or not during working hours, that are within the scope of the Employer’s business operations or that relate to any of the Employer’s work or projects (including any and all inventions based wholly or in part upon ideas conceived during the Executive’s employment with the Employer), are the sole and exclusive property of the Employer. The Executive further agrees that (1) he will promptly disclose all Inventions to the Employer and hereby assigns to the Employer all present and future rights he has or may have in those Inventions, including without limitation those relating to patent, copyright, trademark or trade secrets; and (2) all of the Inventions eligible under the copyright laws are “work made for hire.” At the request of the Employer, the Executive will do all things reasonably necessary to perfect title to the Inventions in the Employer and to assist in obtaining for the Employer such patents, copyrights or other protection as may be provided under law and desired by the Employer, including but not limited to executing and signing any and all relevant applications, assignments or other instruments. Notwithstanding the foregoing, the Employer hereby notifies the Executive that the provisions of this Paragraph 9 shall not apply to any Inventions for which no equipment, supplies, facility or trade secret information of the Employer was used and which were developed entirely on the Executive’s own time, unless (1) the Invention relates (i) to the business of the Employer, or (ii) to actual or demonstrably anticipated research or development of the Employer, or (2) the Invention results from any work performed by the Executive for the Employer.
J. The Executive acknowledges and agrees that all customer lists, supplier lists, and customer and supplier information, including, without limitation, addresses and telephone numbers, are and shall remain the exclusive property of the Employer, regardless of whether such information was developed, purchased, acquired, or otherwise obtained by the Employer or the Executive. The Executive agrees to furnish to the Employer on demand at any time during the period of this Agreement, and upon the termination of this Agreement, any records, notes, computer printouts, computer programs, computer software, price lists, microfilm, or any other documents related to the Employer’s business, including originals and copies thereof. The Executive recognizes and agrees that he has no expectation of privacy with respect to the Employer’s telecommunications, networking or information processing systems (including, without limitation, stored computer files, email messages and voice messages) and that the Executive’s activity and any files or messages on or using any of those systems may be monitored at any time without notice.
K. The Executive acknowledges that he may become aware of “material” nonpublic information relating to the Employer or any of its customers whose stock is publicly traded. The Executive acknowledges that he is prohibited by law as well as by Employer policy from trading in the shares of the Employer or such customers while in possession of such information or directly or indirectly disclosing such information to any other persons so that they may trade in these shares. For purposes of this Paragraph K, “material” information may include any information, positive or negative, which might be of significance to an investor in determining whether to purchase, sell or hold the stock of publicly traded customers. Information may be significant for this purpose even if it would not alone determine the investor’s decision. Examples include a potential business acquisition, internal financial information that departs in any way from what the market would expect, the acquisition or loss of a major contract, or an important financing transaction.
L. The Employer does not wish to incorporate any unlicensed or unauthorized material into its products or services or those of its subsidiaries. Therefore, the Executive agrees that he will not knowingly disclose to the Employer, use in the Employer’s business, or cause the Employer to use, any information or material which is confidential or proprietary to any third party including, but not limited to, any former employer, competitor or client, unless the Employer has a right to receive and use such information. The Executive will not incorporate into his work any material which is subject to the copyrights of any third party unless the Employer has a written agreement with such third party or otherwise has the right to receive and use such information.
M. It is agreed that any breach or anticipated or threatened breach of any of the Exec
Appears in 1 contract
Protective Covenants. The Executive acknowledges and agrees that solely by virtue of his employment by, and relationship with, the EmployerCompany, he has acquired and will acquire "“Confidential Information," ”, as hereinafter defined, as well as special knowledge of the Employer's Company’s relationships with its customerscustomers and suppliers, and that, but for his association with the EmployerCompany, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer Company has long term, near-permanent relationships with its customerscustomers and suppliers, and that those relationships were developed at great expense and difficulty to the Employer Company over several years of close and continuing involvement; and (ii) that the Employer's Company’s relationships and goodwill with its customers and suppliers are and will continue to be valuable, special and unique assets of the Employer; and (iii) that the Employer has the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing models, formulas, software applications and designs and other technologies and devices utilized in the management of communicationsCompany. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and as a condition precedent to the Employer Company entering into this Agreement, and as an inducement to the Employer Company to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employerreasonable.
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer Company of, and provided the Employer Company with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.
D. The In consideration for any amounts due to the Executive under Paragraph 7 of this Agreement, the Executive agrees that, if Executive ceases to be employed by Employer for any reasonduring the time of his employment with the Company and, including without limitation the non-renewal of except as otherwise set forth in this Agreement by the Company, the Executive will notParagraph 8D, for a period of two years , except on behalf six (6) months after a voluntary or involuntary termination of the EmployerExecutive’s employment hereunder, for any reason whatsoever or for no reason, the Executive shall not: (1) engage in any of the activities listed in subparagraphs D(i) and D(ii) below anywhere in the United States of America or in any other place or venue where the Employer Company or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct during such period conducts or operateoperates, its business prior to the date of the Executive’s termination of Executive's employment, or (2) engage in any of the activities listed in subparagraphs D(iii) and D(iv) below anywhere in the State of Florida or any other state that the Company does Business (as defined below) during the Term of this Agreement. The Executive shall not:
(1) i. directly or indirectly, contact, solicit or accept if offered to the Executive, or direct any person, firm, corporation, association or other entity to contact contact, solicit or solicitaccept if offered to it, any of the Employer's customers Company’s customers, prospective customers, or prospective customers suppliers (as hereinafter defined) for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer Company to its customers during the term hereof;; or
(2) ii. solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who the Executive knows or should have known is a then current employee of the Employer Company (or was an employee of the Employer Company during the year preceding such solicitation), nor solicit any of the Employer's Company’s then current employees (or an individual who was employed by or engaged by the Employer Company during the year preceding such solicitation) to terminate employment or an engagement with the EmployerCompany, nor agree to hire any then current employee (or an individual who was an employee of the Employer Company during the year preceding such hire) of the Employer Company into employment with himself or any company, individual or other entity; or
(3) iii. directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the development, design, manufactureconstruction, operation or sales of: (a) residential homes or communities, (b) real estate, or (c) golf courses (the “Business”);
iv. act as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the Company’s customers, prospective customers, or suppliers with respect to or in any way with regard to any aspect of the Business. Notwithstanding the foregoing, this Paragraph 8D shall not apply to any activities listed in subparagraphs D(i) through D(iv), which the Executive engages in on behalf of the Company during the time of his employment with the Company. Subparagraphs D(i), D(iii) and D(iv) shall only apply if the Executive’s termination of employment occurs prior to the end of the Term and, thereafter, such subparagraphs shall be null and void. In the event of any breach of this subparagraph D, the Executive agrees that the six (6) month restricted period shall be tolled during the time of such breach.
E. The Executive acknowledges and agrees that the scope described above is necessary and reasonable in order to protect the Company in the conduct of its business and that, if the Executive becomes employed by another employer, he shall be required to disclose the existence of this Paragraph 8 to such employer and the Executive hereby consents to and the Company is hereby given permission to disclose the existence of this Paragraph 8 to such employer.
F. For purposes of this Paragraph 8, “customer” shall be defined as any person, firm, corporation, association, or entity that is or was doing business with the Company within the twelve (12) month period immediately preceding termination of the Executive’s employment. For purposes of this Paragraph 8, “prospective customer” shall be defined as any person, firm, corporation, association, or entity contacted or solicited by the Company or the Executive (whether directly or indirectly) or who contacted the Company or the Executive (whether directly or indirectly) within the twelve (12) month period immediately preceding termination of the Executive’s employment for the purpose of having such persons, firms, corporations, associations, or entities become a customer of the Company. For purposes of this Paragraph 8, “supplier” shall be defined as any person, firm, corporation, association, or entity who is or was doing business with the Company or who was contacted or solicited by the Company or the Executive on Company’s behalf (whether directly or indirectly) or who contacted or solicited the Company or the Executive for Company work (whether directly or indirectly) within the twelve (12) month period immediately preceding termination of the Executive’s employment.
G. The Executive agrees that both during his employment and thereafter the Executive will not, for any reason whatsoever, use for himself or disclose to any person not employed by the Company any “Confidential Information” of the Company acquired by the Executive during his relationship with the Company, both prior to and during the Term of this Agreement, except as specifically provided herein. The Executive further agrees to use Confidential Information solely for the purpose of performing duties with, or for, the Company and further agrees not to use Confidential Information for his own private use or commercial purposes or in any way detrimental to the Company. The Executive agrees that “Confidential Information” includes but is not limited to: (1) any financial, engineering, business, planning, operations, services, potential services, products, potential products, technical information and/or know-how, organization charts, formulas, business plans, production, purchasing, marketing, pricing, sales, profit, personnel, customer, broker, supplier, or servicing of products then constituting ten percent (10%) other lists or more information of the annual revenues Company; (2) any papers, data, records, processes, methods, techniques, systems, models, samples, devices, equipment, compilations, invoices, customer lists, or documents of the EmployerCompany; or(3) any confidential information or trade secrets of any third party provided to the Company in confidence or subject to other use or disclosure restrictions or limitations; and (4) any other information, written, oral, or electronic, whether existing now or at some time in the future, whether pertaining to current or future developments, and whether previously accessed during the Executive’s tenure with the Company or to be accessed during his future employment with the Company, which pertains to the Company’s affairs or interests or with whom or how the Company does business. The Company acknowledges and agrees that Confidential Information does not include (i) information properly in the public domain, or (ii) information in the Executive’s possession prior to the date of his original employment with the Company (or its predecessors), except to the extent that such information is or has become a trade secret of the Company or is or otherwise has become the property of the Company. Notwithstanding anything to the contrary above, from time to time in the execution of Executive’s duties hereunder, Executive may disclose Confidential Information to unaffiliated third parties in connection with potential business transactions on behalf of Company (for example, an asset sale or acquisition), provided that any such third parties execute a confidentiality agreement with respect to such Confidential Information.
H. Except as otherwise permitted in G above, in the event that the Executive intends to communicate information to any individual(s), entity or entities (other than the Company), to permit access by any individual(s), entity or entities (other than the Company), or to use information for the Executive’s own account or for the account of any individual(s), entity or entities (other than the Company) and such information would be Confidential Information hereunder but for the exceptions set out at (i) and (ii) of Paragraph G of this Agreement, the Executive shall notify the Company of such intent in writing, including a description of such information, no less than fifteen (15) days prior to such communication, access or use.
I. During and after the term of employment hereunder, the Executive will not remove from the Company’s premises any documents, records, files, notebooks, correspondence, reports, video or audio recordings, computer printouts, computer programs, computer software, price lists, microfilm, drawings or other similar documents containing Confidential Information, including copies thereof, whether prepared by him or others, except in connection with the performance of his duties, and in such cases, will promptly return such items to the Company. Upon termination of his employment with the Company, all such items including summaries or copies thereof, then in the Executive’s possession, shall be returned to the Company immediately.
J. The Executive recognizes and agrees that all ideas, inventions, patents, copyrights, copyright designs, trade secrets, trademarks, processes, discoveries, enhancements, software, source code, catalogues, prints, business applications, plans, writings, and other developments or improvements and all other intellectual property and proprietary rights and any derivative work based thereon (the “Inventions”) made, conceived, or completed by the Executive, alone or with others, during the term of his employment, whether or not during working hours, that are within the scope of the Company’s business operations or that relate to any of the Company’s work or projects (including any and all inventions based wholly or in part upon ideas conceived during the Executive’s employment with the Company), are the sole and exclusive property of the Company. The Executive further agrees that (1) he will promptly disclose all Inventions to the Company and hereby assigns to the Company all present and future rights he has or may have in those Inventions, including without limitation those relating to patent, copyright, trademark or trade secrets; and (2) all of the Inventions eligible under the copyright laws are “work made for hire.” At the request of the Company, the Executive will do all things deemed by the Company to be reasonably necessary to perfect title to the Inventions in the Company and to assist in obtaining for the Company such patents, copyrights or other protection as may be provided under law and desired by the Company, including but not limited to executing and signing any and all relevant applications, assignments or other instruments. Notwithstanding the foregoing, the Company hereby notifies the Executive that the provisions of this Paragraph 8 shall not apply to any Inventions for which no equipment, supplies, facility or trade secret information of the Company was used and which were developed entirely on the Executive’s own time, unless (1) the Invention relates (i) to the business of the Company, or (ii) to actual or demonstrably anticipated research or development of the Company, or (2) the Invention results from any work performed by the Executive for the Company.
K. The Executive acknowledges and agrees that all customer lists, supplier lists, and customer and supplier information, including, without limitation, addresses and telephone numbers, are and shall remain the exclusive property of the Company, regardless of whether such information was developed, purchased, acquired, or otherwise obtained by the
Appears in 1 contract
Protective Covenants. The Executive acknowledges and agrees that solely by virtue of his employment by, and relationship with, the Employer, he has acquired and will acquire "“Confidential Information," ” as hereinafter defined, as well as special knowledge of the Employer's ’s relationships with its customers, and that, but for his association with the Employer, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer has long term, near-permanent relationships with its customers, and that those relationships were developed at great expense and difficulty to the Employer over several years of close and continuing involvement; (ii) that the Employer's ’s relationships and goodwill with its customers are and will continue to be valuable, special and unique assets of the Employer; and (iii) that the Employer has the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing models, formulas, software applications and designs and other technologies and devices utilized in the management of communications. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and as a condition precedent to the Employer entering into this Agreement, and as an inducement to the Employer to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employer.
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.
D. The Executive agrees that, if Executive ceases to be employed by Employer for any reason, including without limitation the non-renewal of this Agreement by the Company, the Executive will not, for a period of two years years, except on behalf of the Employer, anywhere in the United States of America or in any other place or venue where the Employer or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct or operate, its business prior to the date of the termination of Executive's ’s employment:
(1) directly or indirectly, contact, solicit or direct any person, firm, corporation, association or other entity to contact or solicit, any of the Employer's ’s customers or prospective customers (as hereinafter defined) for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer to its customers during the term hereof;
; (2) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit any of the Employer's ’s then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself or any company, individual or other entity; or
(3) directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the design, manufacture, marketing, or servicing of products then constituting ten percent (10%) or more of the annual revenues of the Employer; or
Appears in 1 contract
Sources: Employment Agreement (Metasolv Inc)
Protective Covenants. The Executive acknowledges and agrees that solely by virtue of his employment by, and relationship with, the Employer, he has acquired and will acquire "Confidential Information," ", as hereinafter defined, as well as special knowledge of the Employer's relationships with its customerscustomers and suppliers, and that, but for his association with the Employer, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer has long term, near-permanent relationships with its customerscustomers and suppliers, and that those relationships were developed at great expense and difficulty to the Employer over several years of close and continuing involvement; and (ii) that the Employer's relationships and goodwill with its customers and suppliers are and will continue to be valuable, special and unique assets of the Employer; Employer and (iii) that the identity of its customers and suppliers is kept under tight security with the Employer has and cannot be readily ascertained from publicly available materials or from materials available to the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing models, formulas, software applications and designs and other technologies and devices utilized in the management of communicationsEmployer's competitors. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and as a condition precedent to the Employer entering into this Agreement, and as an inducement to the Employer to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employer.
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.
D. The Executive agrees that, if Executive ceases during the time of his employment with the Employer and for a period of one (1) year following the later of (i) the termination of the Executive's employment hereunder pursuant to be employed by Employer Paragraph 6B or 6E, or (ii) one year following the date of the last payment provided for any reason, including without limitation the non-renewal of this Agreement by the Companyunder Paragraph 7B, the Executive will not, for a period of two years , except on behalf of the Employer, anywhere in the United States of America North America, or in any other place or venue where the Employer or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct or operate, its business prior to the date of the Executive's termination of Executive's employment:
(1) directly or indirectly, contact, solicit or direct any person, firm, corporation, association or other entity to contact or solicit, any of the Employer's customers customers, prospective customers, or prospective customers suppliers (as hereinafter defined) for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer to its customers during the term hereof;. In addition, the Executive will not disclose the identity of any such customers, prospective customers, or suppliers, or any part thereof, to any person, firm, corporation, association, or other entity for any reason or purpose whatsoever; or
(2) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit any of the Employer's then current employees (or an individual who was employed by or engaged by an employee of the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself or any company, individual or other entityentity (provided,however, and notwithstanding the foregoing, the Executive shall not be precluded from hiring any current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into any position of public service with a federal, state, or local governmental entity or agency so long as the Executive does not solicit the services of such employee or former employee); or
(3) directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the design, manufacture, marketinga business similar to, or servicing of products then constituting ten percent (10%) or more comparable to, the business of the annual revenues Employer or any affiliate of the Employer; or
(4) act as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the Employer's customers, prospective customers, or suppliers (as hereinafter defined), with respect to or in any way with regard to any aspect of the Employer's business and/or any other business activities in which the Employer engages during the term hereof.
E. The Executive acknowledges and agrees that the scope described above is necessary and reasonable in order to protect the Employer in the conduct of its business and that, if the Executive becomes employed by another employer, he shall be required to disclose the existence of this Paragraph 8 to such employer and the Executive hereby consents to and the Employer is hereby given permission to disclose the existence of this Paragraph 8 to such employer.
F. For purposes of this Paragraph 8, "customer" shall be defined as any person, firm, corporation, association, or entity that purchased any type of product and/or service from the Employer or is or was doing business with the Employer or the Executive within the twelve (12) month period immediately preceding termination of the Executive's employment. For purposes of this Paragraph 8, "prospective customer" shall be defined as any person, firm, corporation, association, or entity contacted or solicited by the Employer or the Executive (whether directly or indirectly) or who contacted the Employer or the Executive (whether directly or indirectly) within the twelve (12) month period immediately preceding termination of the Executive's employment for the purpose of having such persons, firms, corporations, associations, or entities become a customer of the Employer. For purposes of this Paragraph 8, "supplier" shall be defined as any person, firm, corporation, association, or entity who is or was doing business with the Employer or the Executive or who was contacted or solicited by the Employer or the Executive (whether directly or indirectly) or who contacted or solicited the Employer or the Executive (whether directly or indirectly) within the twelve (12) month period immediately preceding termination of the Executive's employment.
G. The Executive agrees that both during his employment and thereafter the Executive will not, for any reason whatsoever, use for himself or disclose to any person not employed by the Employer any "Confidential Information" of the Employer acquired by the Executive during his relationship with the Employer, both prior to and during the term of this Agreement. The Executive further agrees to use Confidential Information solely for the purpose of performing duties with, or for, the Employer and further agrees not to use Confidential Information for his own private use or commercial purposes or in any way detrimental to the Employer. The Executive agrees that "Confidential Information" includes but is not limited to: (1) any financial, engineering, business, planning, operations, services, potential services, products, potential products, technical information and/or know-how, organization charts, formulas, business plans, production, purchasing, marketing, pricing, sales, profit, personnel, customer, broker, supplier, or other lists or information of the Employer; (2) any papers, data, records, processes, methods, techniques, systems, models, samples, devices, equipment, compilations, invoices, customer lists, or documents of the Employer; (3) any confidential information or trade secrets of any third party provided to the Employer in confidence or subject to other use or disclosure restrictions or limitations; and (4) any other information, written, oral, or electronic, whether existing now or at some time in the future, whether pertaining to current or future developments, and whether previously accessed during the Executive's tenure with the Employer or to be accessed during his future employment with the Employer, which pertains to the Employer's affairs or interests or with whom or how the Employer does business. The Employer acknowledges and agrees that Confidential Information does not include (a) information properly in the public domain, (b) information in the Executive's possession prior to the date of his original association with the Employer, or (c) information which is required to be disclosed by law or legal process provided that the Executive notifies the Employer prior to or, if such advance notification is not possible, promptly after such disclosure and cooperates with the Employer in obtaining any protective order regarding or other confidential treatment of such information.
Appears in 1 contract
Protective Covenants. The Executive acknowledges You acknowledge and agrees agree that solely by virtue of his your employment by, and relationship with, the EmployerCompany, he has you have acquired and will acquire "“Confidential Information," ” as hereinafter defined, as well as special knowledge of the Employer's Soft Home group’s relationships with its customerscustomers and suppliers, and that, but for his your association with the EmployerCompany, the Executive you would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive You further acknowledges acknowledge and agrees agree (i) that the Employer Company has long term, near-permanent relationships with its customerscustomers and suppliers, and that those relationships were developed at great expense and difficulty to the Employer Company over several years of close and continuing involvement; (ii) that the Employer's Company’s relationships and goodwill with its customers and suppliers are and will continue to be valuable, special and unique assets of the EmployerCompany and that the identity, business needs and methods of conducting business of, or relating to, each of its customers and suppliers is kept under tight security with the Company and its affiliates and cannot be readily ascertained from publicly available materials or from materials available to their competitors; and (iii) that the Employer has Company and its affiliates have the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing modelsPricing information and strategy, formulascost data, software applications product specifications, product development and designs obsolescence policies and time table. You agree not to disclose any of the foregoing information to any person, firm, corporation, association, or other technologies and devices utilized in the management of communicationsentity for any reason or purpose whatsoever. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and as a condition precedent to the Employer Company entering into this Agreement, and as an inducement to the Employer Company to do so, the Executive you hereby representsrepresent, warrantswarrant, and covenants covenant as follows:
A. The Executive has You have executed and delivered this Agreement as his your free and voluntary act, after having determined that the provisions contained herein are of a material benefit to himyou, and that the duties and obligations imposed on him you hereunder are fair and reasonable and will not prevent him you from earning a comparable livelihood following the termination of his your employment with the EmployerCompany.
B. The Executive has You have read and fully understands understand the terms and conditions set forth herein, has have had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has have had the opportunity to review the terms hereof with an attorney or other representative, if he you so chooseschoose. You have read and understand the Code of Business Conduct and Ethics attached hereto as Exhibit B. You agree to sign and return to the Company the Acknowledgement and Certification attached thereto and to comply with the terms thereof and as it may be amended from time to time by the Board of Directors of Parent.
C. The Your execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is you are a party or by which the Executive you may be bound. In addition, the Executive has you have informed the Employer Company of, and provided the Employer Company with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is you are subject or may be bound.
D. The Executive agrees thatYou agree that during the period of your employment under this Agreement, if Executive ceases to be employed by Employer and for so long thereafter as you are providing services under any reason, including without limitation the non-renewal of this Agreement by the agreement or understanding with Company, the Executive Parent or any affiliate, you will not, for a period of two years , except on behalf of the EmployerCompany, anywhere in the United States of America or in any other place or venue where the Employer or any affiliate, subsidiary, or division thereof Company now conducts or operates, or may conduct or operate, its business prior to the date of the your termination of Executive's employment:
(1i) directly or indirectly, contact, solicit or accept if offered to you, or direct any person, firm, corporation, association or other entity to contact contact, solicit or solicitaccept if offered to it, any of the Employer's customers customers, prospective customers, or prospective customers suppliers (as hereinafter defined) of the Company or its affiliates for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer Company or its affiliates to its their customers during the term hereof;; or
(2ii) solicit or accept if offered to himyou, with or without solicitation, on his your own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer Company or its affiliates (or was an employee of the Employer Company or its affiliates during the year preceding such solicitation), nor solicit any of the Employer's then current employees of the Company or its affiliates (or an individual who was employed by or engaged by the Employer any of them during the year preceding such solicitation) to terminate employment or an engagement with the Employerany of them, nor agree to hire any then current employee (or an individual who was an employee of the Employer Company or its affiliates during the year preceding such hire) of the Employer Company or its affiliates into employment with himself you or any company, individual or other entity; or.
E. You agree that during the period of your employment under this Agreement, and for so long thereafter as you are providing services under any agreement or understanding with the Company, Parent or any affiliate, you will not:
(3i) directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the design, manufacture, marketing, or servicing of products then constituting ten percent (10%) or more similar to those of the annual revenues Company or its affiliates; or
(ii) act as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the EmployerCompany’s or its affiliates’ customers, prospective customers, or suppliers (as hereinafter defined), with respect to or in any way with regard to any aspect of the Company’s or its affiliates’ business and/or any other business activities in which the Company or its affiliates’ engages during the term hereof.
F. You acknowledge and agree that the scope described in this Paragraph 7 is necessary and reasonable in order to protect the Company in the conduct of its business and that, if you become employed by another employer, you shall be required to disclose the existence of this Paragraph 7 to such employer and you hereby consent to and the Company is hereby given permission to disclose the existence of this Paragraph 7 to such employer.
G. You agree that both during your employment and thereafter, you will not, for any reason whatsoever, use for yourself or disclose to any person not employed by the Company any “Confidential Information” of the Company or its affiliates acquired by you during your relationship with the Company, both prior to and during the term of this Agreement. You further agree to use Confidential Information solely for the purpose of performing duties with, or for, the Company and further agree not to use Confidential Information for your own private use or commercial purposes or in any way detrimental to the Company or its affiliates. You agree that “Confidential Information” includes but is not limited to: (i) any financial, engineering, business, planning, operations, services, potential services, products, potential products, technical information and/or know-how, organization charts, formulas, business plans, production, purchasing, marketing, pricing, sales, profit, personnel, customer, broker, supplier, or other lists or information of the Company; or(ii) any papers, data, records, processes, methods, techniques, systems, models, samples, devices, equipment, compilations, invoices, customer lists, or documents of the Company or its affiliates; (iii) any confidential information or trade secrets of any third party provided to the Company or its affiliates in confidence or subject to other use or disclosure restrictions or limitations; and (iv) any other information, written, oral, or electronic, whether existing now or at some time in the future, whether pertaining to current or future developments, and whether previously accessed during your tenure with the Company or to be accessed during your future employment with the Company, which pertains to the Company’s affairs or interests or with whom or how the Company does business. The Company acknowledges and agrees that Confidential Information does not include information properly in the public domain.
H. In the event that you intend to communicate information to any individual(s), entity or entities (other than the Company), to permit access by any individual(s), entity or entities (other than the Company), or to use information for your own account or for the account of any individual(s), entity or entities (other than the Company) and such information would be Confidential Information hereunder but for the exception set out in Paragraph 7G of this Agreement, you shall notify the Company of such intent in writing, including a description of such information, no less than fifteen (15) days (or any such earlier date as may be compelled by a subpoena) prior to such communication, access or use.
I. During and after the term of employment hereunder, you will not remove from the Company’s premises any documents, records, files, notebooks, correspondence, reports, video or audio recordings, computer printouts, computer programs, computer software, price lists, microfilm, drawings or other similar documents containing Confidential Information, including copies thereof, whether prepared by you or others, except as your duties shall require, and in such cases, will promptly return such items to the Company. Upon termination of your employment with the Company, all such items including summaries or copies thereof, then in your possession, shall be returned to the Company immediately.
J. You acknowledge that any and all designs, inventions, developments, procedures, methods and concepts, and any and all improvements of any nature in the designs, inventions, processes, methods and concepts of the Company or any affiliate made by you which is useful in our business shall be deemed to be a “work for hire” and ownership thereof shall vest immediately in the Company or its affiliates.
K. You acknowledge and agree that all customer lists, supplier lists, and customer and supplier information, including, without limitation, addresses and telephone numbers, are and shall remain the exclusive property of the Company, regardless of whether such information was developed, purchased, acquired, or otherwise obtained by the Company or you. You agree to furnish to the Company on demand at any time during the term of this Agreement, and upon termination of this Agreement, your complete list of the correct names and places of business and telephone numbers of all of its customers served by you, including all copies thereof wherever located. You recognize and agree that you have no expectation of privacy with respect to the Company’s telecommunications, networking or information processing systems (including, without limitation, stored computer files, email messages and voice messages) and that your activity and any files or messages on or using any of those systems may be monitored at any time without notice.
L. You acknowledge that you may become aware of “material” nonpublic information relating to customers whose stock is publicly traded. You acknowledge that you are prohibited by law as well as by Company policy from trading in the shares of such customers while in possession of such information or directly or indirectly disclosing such information to any other persons so that they may trade in these shares. For purposes of this Paragraph 7L, “material” information may include any information, positive or negative, which might be of significance to an investor in determining whether to purchase, sell or hold the stock of publicly traded customers. Information may be significant for this purpose even if it would not alone determine the investor’s decision. Examples include a potential business acquisition, internal financial information that departs in any way from what the market would expect, the acquisition or loss of a major contract, or an important financing transaction.
M. The Company does not wish to incorporate any unlicensed or unauthorized material into its products or services or those of its affiliates. Therefore, you agree that you will not knowingly disclose to the Company, use in the Company’s business, or cause the Company to use, any information or material which is confidential or proprietary to any third party including, but not limited to, any former employer, competitor or client, unless the Company has a right to receive and use such information. You will not incorporate into your work any material which is subject to the copyrights of any third party unless the Company has a written agreement with such third party or otherwise has the right to receive and use such information.
N. It is agreed that any breach or anticipated or threatened breach of any of your covenants contained in this Paragraph 7 will result in irreparable harm and continuing damages to the Company and its business and that the Company’s remedy at law for any such breach or anticipated or threatened breach will be inadequate and, accordingly, in addition to any and all other remedies that may be available to the Company at law or in equity in such event, any court of competent jurisdiction may issue a decree of specific performance or issue a temporary and permanent injunction, without the necessity of the Company posting bond or furnishing other security and without proving special damages or irreparable injury, enjoining and restricting the breach, or threatened breach, of any such covenant, including, but not limited to, any injunction restraining you from disclosing, in whole or part, any Confidential Information. You acknowledge the truthfulness of all factual statements in this Agreement and agree that you are estopped from and will not make any factual statement in any proceeding that is contrary to this Agreement or any part thereof. You further agree to pay all of the Company’s costs and expenses, including reasonable attorneys’ and accountants’ fees, incurred in enforcing such covenants.
Appears in 1 contract
Protective Covenants. The Executive acknowledges and agrees that solely by virtue of his employment by, and relationship with, the Employerwith Ultrak, he has acquired and will acquire "Confidential Information," CONFIDENTIAL INFORMATION", as hereinafter defined, as well as special knowledge of the Employer's relationships with its customerscustomers and business brokers, and that, but for his association with the Employer, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer has long term, near-permanent relationships with its customers, and that those relationships were developed at great expense and difficulty to the Employer over several years of close and continuing involvement; (ii) that the Employer's relationships and goodwill with its customers are and will continue to be valuable, special and unique assets of the Employer and that the identity of its customers is kept under tight security with the Employer and cannot be readily ascertained from publicly available materials or from materials available to the Employer's competitors; and (iii) that the Employer has the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing models. The Executive acknowledges and agrees that by virtue of his employment by and relationship with Ultrak that Ultrak agrees to provide the Executive with specialized training and instruction regarding Ultrak's operations, formulasproducts sold and serviced by Ultrak, software applications as well as marketing and designs operational techniques and other technologies strategies to the extent applicable to the Executive's employment with Ultrak. This training may be provided through direct experience or otherwise. The Executive acknowledges and devices utilized agrees that by virtue of his employment by and relationship with Ultrak that Ultrak agrees to provide the Executive with an interest in the management growth of communicationsthe goodwill of Ultrak through his employment. Ultrak also agrees to provide expense reimbursements in accordance with Ultrak policy, access to confidential information, and contact with customers, contractors and vendors in order to help Ultrak develop goodwill for Ultrak. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is are hereby acknowledged, and as a condition precedent to the Employer entering into this Agreement, and as an inducement to the Employer to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employer.;
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.;
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.;
D. The Executive agrees that, if Executive ceases to be employed by Employer during the time of his employment and for any reasona period of one (1) year after the termination of the Executive's employment under Paragraph 7A, including without limitation the non-renewal of this Agreement by the CompanyC, D, or E, the Executive will not, for a period of two years , except on behalf of the Employer, anywhere in the United States of America or in assist a Competing Business (as defined below) by doing any other place or venue where the Employer or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct or operate, its business prior to the date of the termination of Executive's employmentfollowing prohibited acts:
(1) directly or indirectly, contactcontact or solicit, solicit or direct any person, firm, corporation, association or other entity one else to contact or solicit, any of the Employer's customers Covered Customer or prospective customers Prospective Customer (as hereinafter defineddefined below) or Business Brokers (as defined below) for the purpose of providing selling or attempting to sell, any products and/or services that are the same as or so similar to the products and services provided by the Employer to its customers that they would displace or reduce the volume of products or services sold by Employer to its customers during the term hereof;. In addition, the Executive will not identify or disclose any such Covered Business Brokers, Covered Customers or Prospective Customers, or any part thereof, as being a business broker, customer or prospective customer of Employer to any person, firm, corporation, association, or other entity engaged in a Competing Business; or
(2) solicit participate in a Competing Business by supervising, or accept if offered to himproviding, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit any of the Employer's then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself or any company, individual or other entity; or
(3) directly or indirectly, whether as an investor services or assistance to a Competing Business in a position that involves (excluding investments representing a) duties or functions that are the same or substantially similar in their purpose to those provided by Executive to Employer, (b) duties or functions that would involve input into or direction of the Competing Business' decisions regarding, but not limited to, marketing, product or service development, engineering or research and development, financial planning, organizational change or restructuring, customer solicitations, and (c) direction or control over communications with Covered Customers and Prospective Customers, and Covered Brokers; provided, however, that nothing herein shall prevent Executive from directly owning less than one percent (1%) of the common stock of a public company)publicly traded Competing Business or indirect ownership of an interest in a Competing Business through mutual funds or similar investment entities; or
(3) solicit or otherwise induce, lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson on his own behalf or in on behalf of any other capacityperson or entity, whether part-time or full-time, become associated with any business involved in the design, manufacture, marketing, or servicing of products then constituting ten percent (10%) or more person who is any of the annual revenues of Employer's employees to terminate employment with the Employer; or
(4) take any action as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the Employer's business brokers, customers, or prospective customers to induce the Employer's business broker, customer or prospective customer at issue
Appears in 1 contract
Sources: Employment Agreement (Ultrak Inc)
Protective Covenants. The Executive acknowledges and agrees that solely by virtue of his her employment by, and relationship with, with the Employer, he she has acquired and will acquire "Confidential Information," Information (as hereinafter defineddefined in this Agreement), as well as special knowledge of the Employer's relationships with its customerscustomers and business brokers, and that, but for his her association with the Employer, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer has long term, near-permanent relationships with its customers, and that those relationships were developed at great expense and difficulty to the Employer over several years of close and continuing involvement; (ii) that the Employer's relationships and goodwill with its customers are and will continue to be valuable, special and unique assets of the Employer and that the identity of its customers is kept under tight security with the Employer and cannot be readily ascertained from publicly available materials or from materials available to the Employer's competitors; and (iii) that the Employer has the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing models. The Executive acknowledges and agrees that by virtue of her employment by and relationship with the Employer that the Employer agrees to provide the Executive with specialized training and instruction regarding the Employer's operations, formulasproducts sold and serviced by the Employer, software applications as well as marketing and designs operational techniques and other technologies strategies to the extent applicable to the Executive's employment with the Employer. This training may be provided through direct experience or otherwise. The Executive acknowledges and devices utilized agrees that by virtue of her employment by and relationship with the Employer that the Employer agrees to provide the Executive with an interest in the management growth of communicationsthe goodwill of the Employer through her employment. The Employer also agrees to provide expense reimbursements in accordance with the Employer's policy, access to confidential information, arid contact with customers, contractors and vendors in order to help the Employer develop goodwill for the Employer. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is are hereby acknowledged, and as a condition precedent to the Employer entering into this Agreement, and as an inducement to the Employer to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his her free and voluntary act, after having determined that the provisions contained herein are of a material benefit to himher, and that the duties and obligations imposed on him her hereunder are fair and reasonable and will not prevent him her from earning a comparable livelihood following the termination of his her employment with the Employer.;
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, Agreement and has had the opportunity to review the terms hereof with an attorney or other representative, if he she so chooses.;
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.;
D. The Executive agrees that, if Executive ceases to be employed by Employer during the time of her employment and for any reasona period of one (1) year after the termination of the Executive's employment under Paragraph 7A C, including without limitation the non-renewal of this Agreement by the CompanyD, E or F, the Executive will not, for a period of two years , except on behalf of the Employer, anywhere in the United States of America or in assist a Competing Business (as defined below) by doing any other place or venue where the Employer or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct or operate, its business prior to the date of the termination of Executive's employmentfollowing prohibited acts:
(1) directly or indirectly, contactcontact or solicit, solicit or direct any person, firm, corporation, association or other entity one else to contact or solicit, any of the Employer's customers Covered Customer or prospective customers Prospective Customer (as hereinafter defineddefined below) or Business Brokers (as defined below) for the purpose of providing selling or attempting to sell, any products and/or services that are the same as or so similar to the products and services provided by the Employer to its customers that they would displace or reduce the volume of products or services sold by Employer to its customers during the term hereof;. In addition, the Executive will not identify or disclose any such Covered Business Brokers, Covered Customers or Prospective Customers, or any part thereof, as being a business broker, customer or prospective customer of the Employer to any person, firm, corporation, association, or other entity engaged in a Competing Business; or
(2) solicit participate in a Competing Business by supervising, or accept if offered to himproviding, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit any of the Employer's then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself or any company, individual or other entity; or
(3) directly or indirectly, whether as an investor services or assistance to a Competing Business in a position that involves (excluding investments representing a) duties or functions that are the same or substantially similar in their purpose to those provided by the Executive to the Employer, (b) duties or functions that would involve input into or direction of the Competing Business' decisions regarding, but not limited to, marketing, product or service development, engineering or research and development, financial planning, organizational change or restructuring, customer solicitations, and (c) direction or control over communications with Covered Customers and Prospective Customers, and Covered Brokers; provided, however, that nothing herein shall prevent the Executive from directly owning less than one percent (1%) of the common stock of a public company)publicly traded Competing Business or indirect ownership of an interest in a Competing Business through mutual funds or similar investment entities; or
(3) solicit or otherwise induce, lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson on her own behalf or in on behalf of any other capacityperson or entity, whether part-time or full-time, become associated with any business involved in the design, manufacture, marketing, or servicing of products then constituting ten percent (10%) or more person who is any of the annual revenues of Employer's employees to terminate employment with the Employer; or
(4) take any action as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the Employer's business brokers, customers, or prospective customers to induce the Employer's business broker, customer or prospective customer at issue to terminate or reduce in any way any aspect of the Employer's ongoing sales or services, or other business activities with the customer, broker or prospective customer that the Executive is then working for; or
(5) use any of the specialized training she has received from the Employer; or
(6) use the goodwill developed with the Employer's customers, contractors and vendors. The foregoing restrictions in Paragraphs 9D(l)-(4) apply to activities by Executive anywhere within a fifty (50) mile radius of any office of Employer; and at the addresses or locations where Covered Customers and Prospective Customers and Covered Brokers are doing business at the time of the Executive's termination from employment & during a period of six (6) months prior to the Executive's termination from employment unless otherwise modified and agreed to in writing and authorized by the CEO.
E. The Executive acknowledges and agrees that the scope described above is necessary and reasonable in order to protect the Employer in the conduct of its business and that, if the Executive becomes employed by another employer, she shall be required to disclose the existence of this Paragraph 9 to such employer and the Executive hereby consents to and the Employer is hereby given permission to disclose the existence of this Paragraph 9 to such employer;
F. A COMPETING BUSINESS, as referred to in Paragraph 9 and its subparts, means any person or entity engaged in the business of providing competing goods or services that are the same or similar to the goods or services sold by the Employer to its customers that they would displace or reduce the volume of products or services sold by the Employer to its customers. A COVERED CUSTOMER or PROSPECTIVE CUSTOMER, as referred to in Paragraph 9 and its subparts, means any person or entity that (a) hold a contract with the Employer, or requested a contract proposal, or had a contract proposal made to it by the Employer, within the previous six (6) months; and (b) that the Executive either had contact with or received confidential information about during the last six (6) months of the Executive's employment with the Employer. A COVERED BROKER, as referred to in Paragraph 9 and its subparts, refers to any person or entity who, within the preceding twelve (12) months in the ordinary course of business for that person or entity, (a) acted as an agent or intermediary to facilitate the sale of goods or services sold by the Employer and, (b) had contact with the Executive or was the subject of confidential information handled by the Executive.
G. The Executive agrees that both during her employment and for a period of one (1) year thereafter the Executive will not, for any reason whatsoever, use for herself or disclose to any person not employed by the Employer any Confidential Information (as defined in this Agreement) of the Employer acquired by the Executive during her relationship with the Employer, both prior to and during the term of this Agreement, except as otherwise provided for below. The Executive further agrees to use Confidential Information solely for the purpose of performing duties with the Employer and further agrees not to use Confidential Information for her own private use or commercial purposes or in any way detrimental to the Employer, except as otherwise provided for below. The Executive agrees that the term CONFIDENTIAL INFORMATION means (1) information created or compiled by the Employer in the course of its business, including a formula, pattern, compilation, program, product, device, method, technique, or process, that (i) derives 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, and (ii) is subject to efforts by the Employer that are reasonable under the circumstances to keep it secret; or (2) information that was first acquired by the Executive from or through the Executive's employment with the Employer and that is information the Employer indicated to the Executive should be maintained as confidential and not disclosed to others outside the company without permission by designating or marking it as "confidential" or through some other reasonable means of communication. The Employer acknowledges and agrees that Confidential Information does not include (1) information properly in the public domain, or (2) information in the Executive's possession prior to the date of her original employment with the Employer. Nothing herein will be construed to preclude the Executive from (i) disclosing Confidential Information to her personal accountants, tax advisors, or legal counsel, in confidence, where necessary for them to provide their professional services to the Executive; or,
Appears in 1 contract
Sources: Employment Agreement (American Building Control Inc)
Protective Covenants. The Executive Employee recognizes that Employee’s employment by L▇▇▇▇▇ is one of the highest trust and confidence. In return for the Employee’s agreement to the protective covenants herein, L▇▇▇▇▇ agrees that the (i) Employee will become fully familiar with many aspects of Lennox’ business, including future changes customarily related to the performance of the duties of Employee’s position during the term of the Agreement, (ii) Employee will be given access to proprietary confidential information of L▇▇▇▇▇ or its customers and other information which is of special and peculiar commercial or competitive value to Lennox or its customers for use in connection with L▇▇▇▇▇’ business, which proprietary confidential information is for the sole and exclusive benefit of L▇▇▇▇▇, (iii) Employee will be given all specialized training necessary to perform his or her assigned duties, and (iv) Employee will be provided with L▇▇▇▇▇’ goodwill in dealing with customers, vendors and potential business contacts. Employee acknowledges and agrees that solely if any such proprietary and confidential information of either L▇▇▇▇▇ or its customers were to become known by virtue any persons outside of his employment byLennox with a need to have such information, hardship, loss or irreparable injury and relationship withdamage could result to L▇▇▇▇▇ or its customers which would be difficult if not impossible to measure. Therefore, the Employer, he has acquired and will acquire "Confidential Information," as hereinafter defined, as well as special knowledge of the Employer's relationships with its customers, and that, but for his association with the Employer, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and Employee agrees that (i) that the Employer has long term, near-permanent relationships with it is necessary for L▇▇▇▇▇ to protect its customers, business and that those relationships were developed at great expense and difficulty to the Employer over several years of close and continuing involvement; its customers from such damage, (ii) that the Employer's relationships and goodwill with its customers are and will continue to be valuableinformation is of a confidential nature, special and unique assets of the Employer; and (iii) that the Employer has following covenants constitute a reasonable and appropriate means, consistent with the best interests of both Employee and L▇▇▇▇▇, to protect L▇▇▇▇▇ and its customers against such damage and to protect the value of their confidential proprietary information, (iv) that the following protectable interests that covenants are critical agreed to its competitive advantage in the industry as a term and would be condition of demonstrable value in the hands of a competitor: pricing models, formulas, software applications Employee’s continued employment with L▇▇▇▇▇ and designs and other technologies and devices utilized in the management of communications. In return for the are supported by adequate consideration described in this Agreementfrom Lennox, and other good (v) shall apply to and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and be binding upon Employee as a condition precedent to the Employer entering into this Agreement, and as an inducement to the Employer to do so, the Executive hereby represents, warrants, and covenants as followsprovided herein:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employer.
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.
D. The Executive agrees that, if Executive ceases to be employed by Employer for any reason, including without limitation the non-renewal of this Agreement by the Company, the Executive will not, for a period of two years , except on behalf of the Employer, anywhere in the United States of America or in any other place or venue where the Employer or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct or operate, its business prior to the date of the termination of Executive's employment:
(1) directly or indirectly, contact, solicit or direct any person, firm, corporation, association or other entity to contact or solicit, any of the Employer's customers or prospective customers (as hereinafter defined) for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer to its customers during the term hereof;
(2) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit any of the Employer's then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself or any company, individual or other entity; or
(3) directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the design, manufacture, marketing, or servicing of products then constituting ten percent (10%) or more of the annual revenues of the Employer; or
Appears in 1 contract
Protective Covenants. The Executive Associate acknowledges and agrees that solely by virtue of his employment by, and relationship with, the Employer, he has acquired and will acquire "Confidential Information," as hereinafter defined, as well as special knowledge of the Employer's relationships with its customerscustomers and business brokers, and that, but for his association with the Employer, the Executive would not or Associate will not have had access to said Confidential Information or knowledge of said relationships. The Executive Associate further acknowledges and agrees (i) that the Employer has long term, near-permanent relationships with its customerscustomers and business brokers, and that those relationships were developed at great expense and difficulty to the Employer over several years of close and continuing involvement; (ii) that the Employer's relationships and goodwill with its customers and business brokers are and will continue to be valuable, special and unique assets of the Employer and that the identity of its customers and business brokers is kept under tight security with the Employer and cannot be readily ascertained from publicly available materials available to the Employer's competitors; and (iii) that the Employer has the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing modelssoftware designs, formulasincluding but not limited to designs relating to health care materials management, software applications health care operating room management, health care patient cost accounting, health care capital asset management, and designs health care centralized patient scheduling; plans, processes and protocols; formulae; and concepts, ideas and other technologies and devices utilized in matters not known to the management of communicationsgeneral public. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is are hereby acknowledged, and as a condition precedent to the Employer entering into this Agreement, and as an inducement to the Employer to do so, the Executive Associate hereby represents, warrants, and covenants as follows:
A. The Executive Associate has executed and delivered this Agreement agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employer.;
B. The Executive Associate has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.;
C. The execution and delivery of this Agreement by the Executive Associate does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive Associate may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.;
D. The Executive Associate agrees that, if Executive ceases to be employed by Employer for any reason, including without limitation during the non-renewal time of this Agreement by the Company, the Executive will not, his employment and for a period of two years one (1) year after termination of the Associate's employment hereunder for any reason whatsoever or for no reason, whether voluntary or involuntary, the Associate will not, except on behalf of the Employer, anywhere in the United States of America or in any other place or venue where the Employer or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct or operate, its business prior to the date of the termination of Executive's employment:
(1) directly or indirectly, contact, solicit or direct any person, firm, corporation, association or other entity corporation to contact or solicit, solicit any of the Employer's customers customers, prospective customers, or prospective customers business brokers (as hereinafter defined) for the purpose of providing selling or attempting to sell, any products and/or services that are the same as or similar to the products and services provided by the Employer to its customers during the term hereof;. In addition, the Associate will not disclose the identity of any such business brokers, customers, or prospective customers, or any part thereof, to any person, firm, corporation, association, or other entity for any reason or purpose whatsoever; and
(2) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit any of the Employer's then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself or any company, individual or other entity; or
(3) directly or indirectly, whether as an investor (excluding investments representing less than one that five percent (15%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the design, manufacture, marketing, or servicing of products then constituting ten percent (10%) or more of the annual revenues sales of the Employer; orand
(3) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is an associate of the Employer, nor solicit any of the Employer's associates to terminate employment with the Employer; and
(4) act as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the Employer's business brokers, customers, or prospective customers (as hereinafter defined), with respect to or in any way with regard to any aspect of the Employer's business and/or any other business activities in which Employer engages during the term hereof;
E. The Associate acknowledges and agrees that the scope described above is necessary and reasonable in order to protect the Employer in the conduct of its business and that, if the Associate becomes employed by another employer, he shall be required to disclose the existence of this Paragraph 9 to such employer;
F. For purposes of this Paragraph 9, "customer" shall be defined as any person, firm, or entity that purchases any type of product and/or service from Employer or is or was doing business with the Employer or the Associate within the twelve (12) month period immediately preceding termination of the Associate's employment. For purposes of this Paragraph 9, "prospective customer" shall be defined as any person, firm, or entity contacted or solicited by the Employer or the Associate (whether directly or indirectly) or who contacted the Employer or the Associate (whether directly or indirectly) within the twelve (12) month period immediately preceding termination of the Associate's employment for the purpose of having such persons, firms, or entities become a customer of the Employer. For purposes of this Paragraph 9, "business broker" shall be defined as any person, firm, or entity who is or was doing business with the Employer or the Associate or was contacted or solicited by the Employer or the Associate (whether directly or indirectly) or who contacted or solicited the Employer or the Associate (whether directly or indirectly) within the twelve (12) month period immediately preceding termination of the Associate's employment;
G. The Associate agrees that both during his employment and thereafter the Associate will not, for any reason whatsoever, use for himself or disclose to any person not employed by the Employer any "Confidential Information" of the Employer acquired by the Associate during his relationship with the Employer, both prior to and during the term of this Agreement. The Associate further agrees to use Confidential Information solely for the purpose of performing duties with the Employment and further agrees not to use Confidential Information for his own private use or commercial purposes or in any way detrimental to the Employer. The Associate agrees that "Confidential Information" includes but is not limited to: (a) any financial, business, planning, software, operations, services, potential services, products, potential products, designs, technical information and/or know-how, formulas, production, purchasing, marketing, sales, personnel, customer, broker, supplier, or other information of the Employer; (b) any papers, data, records, processes, methods, techniques, systems, models, samples, devices, equipment, compilations, invoices, customer lists, or documents of the Employer; (c) any confidential information or trade secrets of any third party provided to the Employer in confidence or subject to other use or disclosure restrictions or limitations; and (d) any other information, written oral, or electronic, whether existing now or at some time in the future, whether pertaining to current or future developments, and whether previously accessed during the Associate's tenure with the Employer or to be accessed during his future employment with the Employer, which pertains to the Employer's affairs or interests or with whom or how the Employer does business. The Employer acknowledges and agrees that Confidential Information does not include (I) information properly in the public domain, or (ii) information in the Associate's possession prior to the date of his original employment with the Employer.
Appears in 1 contract
Protective Covenants. The Executive acknowledges and agrees that solely by virtue of his employment by, and relationship with, the Employer, he has acquired and will acquire "“Confidential Information," ”, as hereinafter defined, as well as special knowledge of the Employer's ’s relationships with its customers, and that, but for his association with the Employer, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer has long term, near-permanent relationships with its customers, and that those relationships were developed at great expense and difficulty to the Employer over several years of close and continuing involvement; (ii) that the Employer's ’s relationships and goodwill with its customers are and will continue to be valuable, special and unique assets of the Employer; and (iii) that the Employer has the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing models, formulas, software applications and designs and other technologies and devices utilized in the management of communications. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and as a condition precedent to the Employer entering into this Agreement, and as an inducement to the Employer to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employer.
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.
D. The Executive agrees that, if Executive ceases to be employed by during the time of his employment with the Employer and for a period of eighteen (18) months after the termination of the Executive’s employment hereunder for any reason whatsoever or for no reason, including without limitation the non-renewal of this Agreement by the Companywhether voluntary or involuntary, the Executive will not, for a period of two years , except on behalf of the Employer, anywhere in the United States of America or in any other place or venue where the Employer or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct or operate, its business prior to the date of the Executive’s termination of Executive's employment:
(1) directly or indirectly, contact, solicit or accept if offered to the Executive, or direct any person, firm, corporation, association or other entity to contact contact, solicit or solicitaccept if offered to it, any of the Employer's ’s customers or prospective customers (as hereinafter defined) for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer to its customers during the term hereof;; or
(2) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit any of the Employer's ’s then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself or any company, individual or other entity; or
(3) directly or indirectly, whether as an investor (excluding investments representing less than one five percent (15%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the designretail sale of music, manufacturevideo or related products (the “Business”); or
(4) act as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the Employer’s customers or prospective customers, with respect to or in any way with regard to any aspect of the Employer’s Business and/or any other business activities in which the Employer engages during the term hereof. In the event of any breach of this subparagraph D, the Executive agrees that the restricted period shall be tolled during the time of such breach.
E. The Executive acknowledges and agrees that the scope described above is necessary and reasonable in order to protect the Employer in the conduct of its business and that, if the Executive becomes employed by another employer, he shall be required to disclose the existence of this Paragraph 7 to such employer and the Executive hereby consents to and the Employer is hereby given permission to disclose the existence of this Paragraph 7 to such employer.
F. For purposes of this Paragraph 7, “customer” shall be defined as any person, firm, corporation, association, or entity that purchased any type of product and/or service from the Employer or is or was doing business with the Employer or the Executive within the twelve (12) month period immediately preceding termination of the Executive’s employment. For purposes of this Paragraph 7, “prospective customer” shall be defined as any person, firm, corporation, association, or entity contacted or solicited by the Employer or the Executive (whether directly or indirectly) or who contacted the Employer or the Executive (whether directly or indirectly) within the twelve (12) month period immediately preceding termination of the Executive’s employment for the purpose of having such persons, firms, corporations, associations, or entities become a customer of the Employer.
G. The Executive agrees that both during his employment and thereafter the Executive will not, for any reason whatsoever, use for himself or disclose to any person not employed by the Employer any “Confidential Information” of the Employer acquired by the Executive during his relationship with the Employer, both prior to and during the term of his employment. The Executive further agrees to use Confidential Information solely for the purpose of performing duties with, or for, the Employer and further agrees not to use Confidential Information for his own private use or commercial purposes or in any way detrimental to the Employer. The Executive agrees that “Confidential Information” includes but is not limited to: (1) any financial, engineering, business, planning, operations, services, potential services, products, potential products, technical information and/or know-how, organization charts, formulas, business plans, production, purchasing, marketing, pricing, sales, profit, personnel, customer, broker, supplier, or servicing of products then constituting ten percent (10%) other lists or more of the annual revenues information of the Employer; or(2) any papers, data, records, processes, methods, techniques, systems, models, samples, devices, equipment, compilations, invoices, customer lists, or documents of the Employer; (3) any confidential information or trade secrets of any third party provided to the Employer in confidence or subject to other use or disclosure restrictions or limitations; and (4) any other information, written, oral, or electronic, whether existing now or at some time in the future, whether pertaining to current or future developments, and whether previously accessed during the Executive’s tenure with the Employer or to be accessed during his future employment with the Employer, which pertains to the Employer’s Business. The Employer acknowledges and agrees that Confidential Information does not include (i) information properly in the public domain, or (ii) information in the Executive’s possession prior to the date of his original employment with the Employer, except to the extent that such information is or has become a trade secret of the Employer or is or otherwise has become the property of the Employer.
H. In the event that the Executive intends to communicate information to any individual(s), entity or entities (other than the Employer), to permit access by any individual(s), entity or entities (other than the Employer), or to use information for the Executive’s own account or for the account of any individual(s), entity or entities (other than the Employer) and such information would have constituted Confidential Information hereunder but for the exceptions set out at (i) and (ii) of Paragraph G of this Agreement, the Executive shall notify the Employer of such intent in writing, including a description of such information, no less than fifteen (15) days prior to such communication, access or use.
I. During and after the term of employment hereunder, the Executive will not remove from the Employer’s premises any documents, records, files, notebooks, correspondence, reports, video or audio recordings, computer printouts, computer programs, computer software, price lists, microfilm, drawings or other similar documents containing Confidential Information, including copies thereof, whether prepared by him or others, except as his duty shall require, and in such cases, will promptly return such items to the Employer. Upon termination of his employment with the Employer, all such items including summaries or copies thereof, then in the Executive’s possession, shall be returned to the Employer immediately.
J. The Executive recognizes and agrees that all ideas, inventions, patents, copyrights, copyright designs, trade secrets, trademarks, processes, discoveries, enhancements, software, source code, catalogues, prints, business applications, plans, writings, and other developments or improvements and all other intellectual property and proprietary rights and any derivative work based thereon (the “Inventions”) made, conceived, or completed by the Executive, alone or with others, during the term of his employment, whether or not during working hours, that are within the scope of the Employer’s business operations or that relate to any of the Employer’s work or projects (including any and all inventions based wholly or in part upon ideas conceived during the Executive’s employment with the Employer), are the sole and exclusive property of the Employer. The Executive further agrees that (1) he will promptly disclose all Inventions to the Employer and hereby assigns to the Employer all present and future rights he has or may have in those Inventions, including without limitation those relating to patent, copyright, trademark or trade secrets; and (2) all of the Inventions eligible under the copyright laws are “work made for hire.” At the request of the Employer, the Executive will do all things deemed by the Employer to be reasonably necessary to perfect title to the Inventions in the Employer and to assist in obtaining for the Employer such patents, copyrights or other protection as may be provided under law and desired by the Employer, including but not limited to executing and signing any and all relevant applications, assignments or other instruments. The Executive hereby irrevocably designates and appoints the Employer and its duly authorized officers and agents as the Executive’s agents and attorneys-in-fact to act for and on the Executive’s behalf and instead of the Executive, to execute and file any documents and to do all other lawfully permitted acts to further the above purposes with the same legal force and effect as if executed by the Executive, and the Executive acknowledges that this designation and appointment constitutes an irrevocable power of attorney and is coupled with an interest. Notwithstanding the foregoing, the Employer hereby notifies the Executive that the provisions of this Paragraph 7 shall not apply to any Inventions for which no equipment, supplies, facility or trade secret information of the Employer was used and which were developed entirely on the Executive’s own time, unless (1) the Invention relates (i) to the business of the Employer, or (ii) to actual or demonstrably anticipated research or development of the Employer, or (2) the Invention results from any work performed by the Executive for the Employer.
K. The Executive recognizes and agrees that he has no expectation of privacy with respect to the Employer’s telecommunications, networking or information processing systems (including, without limitation, stored computer files, email messages and voice messages) and that the Executive’s activity and any files or messages on or using any of those systems may be monitored at any time without notice.
L. The Executive acknowledges that he may become aware of “material” nonpublic information relating to customers whose stock is publicly traded. The Executive acknowledges that he is prohibited by law as well as by Employer policy from trading in the shares of such customers while in possession of such information or directly or indirectly disclosing such information to any other persons so that they may trade in these shares. For purposes of this Paragraph L, “material” information may include any information, positive or negative, which might be of significance to an investor in determining whether to purchase, sell or hold the stock of publicly traded customers. Information may be significant for this purpose even if it would not alone determine the investor’s decision. Examples include a potential business acquisition, internal financial information that departs in any way from what the market would expect, the acquisition or loss of a major contract, or an important financing transaction.
M. The Employer does not wish to incorporate any unlicensed or unauthorized material into its products or services or those of its subsidiaries. Therefore, the Executive agrees that he will not knowingly disclose to the Employer, use in the Employer’s business, or cause the Employer to use, any information or material which is confidential or proprietary to any third party including, but not limited to, any former employer, competitor or client, unless the Employer has a right to receive and use such information. The Executive will not incorporate into his work any material which is subject to the copyrights of any third party unless the Employer has a written agreement with such third party or otherwise has the right to receive and use such information.
N. It is agreed that any breach or anticipated or threatened breach of any of the Executive’s covenants contained in this Paragraph 7 will result in irreparable harm and continuing damages to the Employer and its business and that the Employer’s remedy at law for any such breach or anticipated or threatened breach will be inadequate and, accordingly, in addition to any and all other remedies that may be available to the Employer at law or in equity in such event, any court of competent jurisdiction may issue a decree of specific performance or issue a temporary and permanent injunction, without the necessity of the Employer posting bond or furnishing other security and without proving special damages or irreparable injury, enjoining and restricting the breach, or threatened breach, of any such covenant, including, but not limited to, any injunction restraining the Executive from disclosing, in whole or part, any Confidential Information.
Appears in 1 contract
Sources: Employment Agreement (Trans World Entertainment Corp)
Protective Covenants. The Executive acknowledges and agrees that solely by virtue of his employment by, and relationship with, the Employer, he has acquired and will acquire "Confidential Information," as hereinafter defined, as well as special knowledge of the Employer's relationships with its customers, and that, but for his association with the Employer, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer has long term, near-permanent relationships with its customers, and that those relationships were developed at great expense and difficulty to the Employer over several years of close and continuing involvement; (ii) that the Employer's relationships and goodwill with its customers are and will continue to be valuable, special and unique assets of the Employer; and (iii) that the Employer has the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing models, formulas, software applications and designs and other technologies and devices utilized in the management of communications. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and as a condition precedent to the Employer entering into this Agreement, and as an inducement to the Employer to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employer.
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.
D. The Executive agrees that, if Executive ceases during the time of his employment with the Employer and (i) in the event the Executive's services are terminated pursuant to be employed by Employer for any reasonParagraphs 7A, including without limitation the non-renewal 7D or 7E of this Agreement by Agreement, for such period as the CompanyExecutive is receiving termination pay under Paragraph 8 of this Agreement, or (ii) in the event the Executive's services are terminated pursuant to Paragraph 7C of this Agreement, for a period of one (1) year after su▇▇ ▇▇▇▇▇▇▇▇▇on, the Executive will not, for a period of two years , except on behalf of the Employer, anywhere in the United States of America or in any other place or venue where the Employer or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct or operate, its business prior to the date of the Executive's termination of Executive's employment:
(1) directly or indirectly, contact, solicit or direct any person, firm, corporation, association or other entity to contact or solicit, any of the Employer's customers or prospective customers (as hereinafter defined) for the purpose of providing any products and/or services on behalf of an independent software vendor that are the same as or similar to the products and services provided by the Employer to its customers during the term hereof, provided that such products and/or services of Employer constituted ten percent (10%) or more of the annual revenues of the Employer;
(2) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit any of the Employer's then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself or any company, individual or other entity; or
(3) directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the design, manufacture, marketing, or servicing of products then constituting ten percent (10%) or more of the annual revenues of the Employer; or
(4) act as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the Employer's customers or prospective customers (as hereinafter defined), with respect to or in any way with regard to any aspect of the Employer's business and/or any other business activities, constituting ten percent (10%) or more of the annual revenues of the Employer, in which the Employer engages during the term hereof. In the event that the Executive's services are terminated pursuant to Paragraphs 7B of this Agreement, the term of the Executive's non-competition obligation imposed by this Section 7 shall be for a period of nine (9) months after such termination.
E. The Executive acknowledges and agrees that the scope described above is necessary and reasonable in order to protect the Employer in the conduct of its business and that, if the Executive becomes employed by another employer, he shall be required to disclose the existence of this Paragraph 9 to such employer and the Executive hereby consents to and the Employer is hereby given permission to disclose the existence of this Paragraph 9 to such employer.
F. For purposes of this Paragraph 9, "customer" shall be defined as any person, firm, corporation, association, or entity that purchased any type of product and/or service from the Employer or is or was doing business with the Employer or the Executive within the twelve (12) month period immediately preceding termination of the Executive's employment. For purposes of this Paragraph 9, "prospective customer" shall be defined as any person, firm, corporation, association, or entity (i) contacted or solicited by the Executive (whether directly or indirectly) or (ii) to the Executive's knowledge, contacted or solicited by any other employee or representative of the Employer, or (iii) who contacted the Executive (whether directly or indirectly) or (iv) to the Executive's knowledge, who contacted the Employer within the twelve (12) month period immediately preceding termination of the Executive's employment for the purpose of having such persons, firms, corporations, associations, or entities become a customer of the Employer.
G. The Executive agrees that both during his employment and thereafter the Executive will not, for any reason whatsoever, use for himself or disclose to any person not employed by the Employer any "Confidential Information" of the Employer acquired by the Executive during his relationship with the Employer, both prior to and during the term of this Agreement. The Executive further agrees to use Confidential Information solely for the purpose of performing duties with the Employer and further agrees not to use Confidential Information for his own private use or commercial purposes or in any way detrimental to the Employer. The Executive agrees that Confidential Information includes but is not limited to: (1) any financial, engineering, business, planning, operations, services, potential services, products, potential products, technical information and/or know-how, organization charts, formulas, business plans, production, purchasing, marketing, pricing, sales, profit, personnel, customer, broker, supplier, or other lists or information of the Employer; (2) any papers, data, records, processes, methods, techniques, systems, models, samples, devices, equipment, compilations, invoices, customer lists, or documents of the Employer; (3) any confidential information or trade secrets of any third party provided to the Employer in confidence or subject to other use or disclosure restrictions or limitations; and (4) any other information, written, oral, or electronic, whether existing now or at some time in the future, whether pertaining to current or future developments, and whether previously accessed during the Executive's tenure with the Employer or to be accessed during his future employment with the Employer, which pertains to the Employer's affairs or interests or with whom or how the Employer does business. The Employer acknowledges and agrees that Confidential Information does not include (x) information properly in the public domain, or (y) information in the Executive's possession prior to the date of his original employment with the Employer, except to the extent that such information is or has become a trade secret of the Employer or is or otherwise has become the property of the Employer.
H. In the event that the Executive intends to communicate information to any individual(s), entity or entities (other than the Employer), to permit access by any individual(s), entity or entities (other than the Employer), or to use information for the Executive's own account or for the account of any individual(s), entity or entities (other than the Employer) and such information would be Confidential Information hereunder but for the exceptions set out at (x) and (y) of Paragraph G of this Agreement, the Executive shall notify the Employer of such intent in writing, including a description of such information, no less than fifteen (15) days prior to such communication, access or use.
I. During and after the term of employment hereunder, the Executive will not remove from the Employer's premises any documents, records, files, notebooks, correspondence, reports, video or audio recordings, computer printouts, computer programs, computer software, price lists, microfilm, drawings or other similar documents containing Confidential Information, including copies thereof, whether prepared by him or others, except as his duty shall require, and in such cases, will promptly return such items to the Employer. Upon termination of his employment with the Employer, all such items including summaries or copies thereof, then in the Executive's possession, shall be returned to the Employer immediately.
J. The Executive recognizes and agrees that all ideas, inventions, patents, copyrights, copyright designs, trade secrets, trademarks, processes, discoveries, enhancements, software, source code, catalogues, prints, business applications, plans, writings, and other developments or improvements and all other intellectual property and proprietary rights and any derivative work based thereon (the "Inventions") made, conceived, or completed by the Executive, alone or with others, during the term of his employment, whether or not during working hours, that are within the scope of the Employer's business operations or that relate to any of the Employer's work or projects (including any and all inventions based wholly or in part upon ideas conceived during the Executive's employment with the Employer), are the sole and exclusive property of the Employer. The Executive further agrees that (1) he will promptly disclose all Inventions to the Employer and hereby assigns to the Employer all present and future rights he has or may have in those Inventions, including without limitation those relating to patent, copyright, trademark or trade secrets; and (2) all of the Inventions eligible under the copyright laws are "work made for hire." At the request of the Employer, the Executive will do all things deemed by the Employer to be reasonably necessary to perfect title to the Inventions in the Employer and to assist in obtaining for the Employer such patents, copyrights or other protection as may be provided under law and desired by the Employer, including but not limited to executing and signing any and all relevant applications, assignments or other instruments. Notwithstanding the foregoing, the Employer hereby notifies the Executive that the provisions of this Paragraph 9 shall not apply to any Inventions for which no equipment, supplies, facility or trade secret information of the Employer was used and which were developed entirely on the Executive's own time, unless (1) the Invention relates (i) to the business of the Employer, or (ii) to actual or demonstrably anticipated research or development of the Employer, or (2) the Invention results from any work performed by the Executive for the Employer.
K. The Executive acknowledges and agrees that all customer lists, supplier lists, and customer and supplier information, including, without limitation, addresses and telephone numbers, are and shall remain the exclusive property of the Employer, regardless of whether such information was developed, purchased, acquired, or otherwise obtained by the Employer or the Executive. The Executive also agrees to furnish to the Employer on demand at any time during the term of this Agreement, and upon the termination of this Agreement, any other records, notes, computer printouts, computer programs, computer software, price lists, microfilm, or any other documents related to the Employer's business, including originals and copies thereof. The Executive recognizes and agrees that he has no expectation of privacy with respect to the Employer's telecommunications, networking or information processing systems (including, without limitation, stored computer files, email messages and voice messages) and that the Executive's activity and any files or messages on or using any of those systems may be monitored at any time without notice.
L. The Executive acknowledges that he may become aware of "material" nonpublic information relating to customers whose stock is publicly traded. The Executive acknowledges that he is prohibited by law as well as by Employer policy from trading in the shares of such customers while in possession of such information or directly or indirectly disclosing such information to any other persons so that they may trade in these shares. For purposes of this Paragraph L, "material" information may include any information, positive or negative, which might be of significance to an investor in determining whether to purchase, sell or hold the stock of publicly traded customers. Information may be significant for this purpose even if it would not alone determine the investor's decision. Examples include a potential business acquisition, internal financial information that departs in any way from what the market would expect, the acquisition or loss of a major contract, or an important financing transaction.
M. The Employer does not wish to incorporate any unlicensed or unauthorized material into its products or services or those of its affiliates. Therefore, the Executive agrees that he will not knowingly disclose to the Employer, use in the Employer's business, or cause the Employer to use, any information or material which is confidential or proprietary to any third party including, but not limited to, any former employer, competitor or client, unless the Employer has a right to receive and use such information. The Executive will not incorporate into his work any material which is subject to the copyrights of any third party unless the Employer has a written agreement with such third party or otherwise has the right to receive and use such information.
N.
Appears in 1 contract
Sources: Employment Agreement (Metasolv Inc)
Protective Covenants. The Executive acknowledges and agrees that -------------------- solely by virtue of his employment by, and relationship with, the Employer, he has acquired and will acquire "Confidential Information," as hereinafter defined, as well as special knowledge of the Employer's relationships with its customers, and that, but for his association with the Employer, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer has long term, near-permanent relationships with its customers, and that those relationships were developed at great expense and difficulty to the Employer over several years of close and continuing involvement; (ii) that the Employer's relationships and goodwill with its customers are and will continue to be valuable, special and unique assets of the Employer; and (iii) that the Employer has the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing models, formulas, software applications and designs and other technologies and devices utilized in the management of communications. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and as a condition precedent to the Employer entering into this Agreement, and as an inducement to the Employer to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employer.
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competitionnoncompetition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.
D. The Executive agrees that, if Executive ceases during the time of his employment with the Employer and (i) in the event the Executive's services are terminated pursuant to be employed by Employer for any reasonParagraphs 7A, including without limitation the non-renewal 7D or 7E of this Agreement by Agreement, for such period as the CompanyExecutive is receiving termination pay under Paragraph 8 of this Agreement, or (ii) in the event the Executive's services are terminated pursuant to Paragraphs 7B or 7C of this Agreement, for a period of one (1) year after such termination, the Executive will not, for a period of two years , except on behalf of the Employer, anywhere in the United States of America or in any other place or venue where the Employer or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct or operate, its business prior to the date of the Executive's termination of Executive's employment:
(1) directly or indirectly, contact, solicit or direct any person, firm, corporation, association or other entity to contact or solicit, any of the Employer's customers or prospective customers (as hereinafter defined) for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer to its customers during the term hereof;
(2) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit any of the Employer's then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself or any company, individual or other entity; or
(3) directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the design, manufacture, marketing, or servicing of products then constituting ten percent (10%) or more of the annual revenues of the Employer; or
(4) act as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the Employer's customers or prospective customers (as hereinafter defined), with respect to or in any way with regard to any aspect of the Employer's business and/or any other business activities in which the Employer engages during the term hereof.
E. The Executive acknowledges and agrees that the scope described above is necessary and reasonable in order to protect the Employer in the conduct of its business and that, if the Executive becomes employed by another employer, he shall be required to disclose the existence of this Paragraph 9 to such employer and the Executive hereby consents to and the Employer is hereby given permission to disclose the existence of this Paragraph 9 to such employer.
F. For purposes of this Paragraph 9, "customer" shall be defined as any person, firm, corporation, association, or entity that purchased any type of product and/or service from the Employer or is or was doing business with the Employer or the Executive within the twelve (12) month period immediately preceding termination of the Executive's employment. For purposes of this Paragraph 9, "prospective customer" shall be defined as any person, firm, corporation, association, or entity (i) contacted or solicited by the Executive (whether directly or indirectly) or (ii) to the Executive's knowledge, contacted or solicited by any other employee or representative of the Employer, or (iii) who contacted the Executive (whether directly or indirectly) or (iv) to the Executive's knowledge, who contacted the Employer within the twelve (12) month period immediately preceding termination of the Executive's employment for the purpose of having such persons, firms, corporations, associations, or entities become a customer of the Employer.
G. The Executive agrees that both during his employment and thereafter the Executive will not, for any reason whatsoever, use for himself or disclose to any person not employed by the Employer any "Confidential Information" of the Employer acquired by the Executive during his relationship with the Employer, both prior to and during the term of this
Appears in 1 contract
Sources: Employment Agreement (Metasolv Inc)
Protective Covenants. Employee recognizes that Employee’s employment by ▇▇▇▇▇▇ is one of the highest trust and confidence. In return for the Employee’s agreement to the protective covenants herein, ▇▇▇▇▇▇ agrees that (i) Employee will become fully familiar with many aspects of ▇▇▇▇▇▇’▇ business, including future changes customarily related to the performance of the duties of Employee’s position during the term of the Agreement; (ii) Employee will be given access to proprietary confidential information of Lennox or its customers and other information which is of special and peculiar commercial or competitive value to Lennox or its customers for use in connection with ▇▇▇▇▇▇’▇ business, which proprietary confidential information is for the sole and exclusive benefit of ▇▇▇▇▇▇; (iii) Employee will be given all specialized training necessary to perform his or her assigned duties; and (iv) Employee will be provided with ▇▇▇▇▇▇’▇ goodwill in dealing with customers, vendors and potential business contacts. The Executive parties agree and stipulate that the restrictions provided for below in Section C.2 (the “Protective Covenants”) are reasonable and necessary to protect ▇▇▇▇▇▇’▇ legitimate interests and are not an unreasonable restraint on Employee’s ability to earn a living. Employee acknowledges and agrees that solely if any such proprietary and confidential information of either ▇▇▇▇▇▇ or its customers were to become known by virtue any persons outside of his employment byLennox with a need to have such information, hardship, loss or irreparable injury and relationship withdamage could result to ▇▇▇▇▇▇ or its customers which would be difficult if not impossible to measure. Therefore, the Employer, he has acquired and will acquire "Confidential Information," as hereinafter defined, as well as special knowledge of the Employer's relationships with its customers, and that, but for his association with the Employer, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and Employee agrees that (i) that the Employer has long term, near-permanent relationships with it is necessary for ▇▇▇▇▇▇ to protect its customers, business and that those relationships were developed at great expense and difficulty to the Employer over several years of close and continuing involvementits customers from such damage; (ii) that the Employer's relationships and goodwill with its customers are and will continue to be valuable, special and unique assets information is of the Employera confidential nature; and (iii) that the Employer has following covenants constitute a reasonable and appropriate means, consistent with the best interests of both Employee and ▇▇▇▇▇▇, to protect ▇▇▇▇▇▇ and its customers against such damage and to protect the value of their confidential proprietary information; (iv) that the following protectable interests that covenants are critical agreed to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing models, formulas, software applications and designs and other technologies and devices utilized in the management of communications. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and as a term and condition precedent to the Employer entering into this Agreement, and as an inducement to the Employer to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his Employee's continued employment with the Employer.
B. The Executive has read ▇▇▇▇▇▇ and fully understands the terms are supported by adequate consideration from Lennox; and conditions set forth (v) that those covenants will apply to and be binding upon Employee as provided herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.
D. The Executive agrees that, if Executive ceases to be employed by Employer for any reason, including without limitation the non-renewal of this Agreement by the Company, the Executive will not, for a period of two years , except on behalf of the Employer, anywhere in the United States of America or in any other place or venue where the Employer or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct or operate, its business prior to the date of the termination of Executive's employment:
(1) directly or indirectly, contact, solicit or direct any person, firm, corporation, association or other entity to contact or solicit, any of the Employer's customers or prospective customers (as hereinafter defined) for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer to its customers during the term hereof;
(2) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit any of the Employer's then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself or any company, individual or other entity; or
(3) directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the design, manufacture, marketing, or servicing of products then constituting ten percent (10%) or more of the annual revenues of the Employer; or
Appears in 1 contract
Protective Covenants. The Executive acknowledges and agrees that solely by virtue of his employment by, and relationship with, the EmployerCompany, he has acquired and will acquire "“Confidential Information," ”, as hereinafter defined, as well as special knowledge of the Employer's Company’s relationships with its customerscustomers and suppliers, and that, but for his association with the EmployerCompany, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer Company has long term, near-permanent relationships with its customerscustomers and suppliers, and that those relationships were developed at great expense and difficulty to the Employer Company over several years of close and continuing involvement; and (ii) that the Employer's Company’s relationships and goodwill with its customers and suppliers are and will continue to be valuable, special and unique assets of the Employer; and (iii) that the Employer has the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing models, formulas, software applications and designs and other technologies and devices utilized in the management of communicationsCompany. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and as a condition precedent to the Employer Company entering into this Agreement, and as an inducement to the Employer Company to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employerreasonable.
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer Company of, and provided the Employer Company with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.
D. The In consideration for any amounts due to the Executive under Paragraph 7 of this Agreement, the Executive agrees that, if Executive ceases to be employed by Employer for any reasonduring the time of his employment with the Company and, including without limitation the non-renewal of except as otherwise set forth in this Agreement by the Company, the Executive will notParagraph 8D, for a period of two years , except on behalf six (6) months after a voluntary or involuntary termination of the EmployerExecutive’s employment, for any reason whatsoever or for no reason, the Executive shall not: (1) engage in any of the activities listed in subparagraphs D(i) and D(ii) below anywhere in the United States of America or in any other place or venue where the Employer Company or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct during such period conducts or operateoperates, its business prior to the date of the Executive’s termination of Executive's employment, or (2) engage in any of the activities listed in subparagraphs D(iii) and D(iv) below anywhere in the State of Florida or any other state that the Company does Business (as defined below) during the term of this Agreement. The Executive shall not:
(1) i. directly or indirectly, contact, solicit or accept if offered to the Executive, or direct any person, firm, corporation, association or other entity to contact contact, solicit or solicitaccept if offered to it, any of the Employer's customers Company’s customers, prospective customers, or prospective customers suppliers (as hereinafter defined) for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer Company to its customers during the term hereof;; or
(2) ii. solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who the Executive knows or should have known is a then current employee of the Employer Company (or was an employee of the Employer Company during the year preceding such solicitation), nor solicit any of the Employer's Company’s then current employees (or an individual who was employed by or engaged by the Employer Company during the year preceding such solicitation) to terminate employment or an engagement with the EmployerCompany, nor agree to hire any then current employee (or an individual who was an employee of the Employer Company during the year preceding such hire) of the Employer Company into employment with himself or any company, individual or other entity; or
(3) iii. directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the development, design, manufactureconstruction, operation or sales of: (a) residential homes or communities, (b) real estate, or (c) golf courses (the “Business”);
iv. act as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the Company’s customers, prospective customers, or suppliers with respect to or in any way with regard to any aspect of the Business. Notwithstanding the foregoing, this Paragraph 8D shall not apply to any activities listed in subparagraphs D(i) through D(iv), which the Executive engages in on behalf of the Company during the time of his employment with the Company. In the event of any breach of this subparagraph D, the Executive agrees that the six (6) month restricted period shall be tolled during the time of such breach.
E. The Executive acknowledges and agrees that the scope described above is necessary and reasonable in order to protect the Company in the conduct of its business and that, if the Executive becomes employed by another employer, he shall be required to disclose the existence of this Paragraph 8 to such employer and the Executive hereby consents to and the Company is hereby given permission to disclose the existence of this Paragraph 8 to such employer.
F. For purposes of this Paragraph 8, “customer” shall be defined as any person, firm, corporation, association, or entity that is or was doing business with the Company within the twelve (12) month period immediately preceding termination of the Executive’s employment. For purposes of this Paragraph 8, “prospective customer” shall be defined as any person, firm, corporation, association, or entity contacted or solicited by the Company or the Executive (whether directly or indirectly) or who contacted the Company or the Executive (whether directly or indirectly) within the twelve (12) month period immediately preceding termination of the Executive’s employment for the purpose of having such persons, firms, corporations, associations, or entities become a customer of the Company. For purposes of this Paragraph 8, “supplier” shall be defined as any person, firm, corporation, association, or entity who is or was doing business with the Company or who was contacted or solicited by the Company or the Executive on Company’s behalf (whether directly or indirectly) or who contacted or solicited the Company or the Executive for Company work (whether directly or indirectly) within the twelve (12) month period immediately preceding termination of the Executive’s employment.
G. The Executive agrees that both during his employment and thereafter the Executive will not, for any reason whatsoever, use for himself or disclose to any person not employed by the Company any “Confidential Information” of the Company acquired by the Executive during his relationship with the Company, both prior to and during the term of this Agreement, except as specifically provided herein. The Executive further agrees to use Confidential Information solely for the purpose of performing duties with, or for, the Company and further agrees not to use Confidential Information for his own private use or commercial purposes or in any way detrimental to the Company. The Executive agrees that “Confidential Information” includes but is not limited to: (1) any financial, engineering, business, planning, operations, services, potential services, products, potential products, technical information and/or know-how, organization charts, formulas, business plans, production, purchasing, marketing, pricing, sales, profit, personnel, customer, broker, supplier, or servicing of products then constituting ten percent (10%) other lists or more information of the annual revenues Company; (2) any papers, data, records, processes, methods, techniques, systems, models, samples, devices, equipment, compilations, invoices, customer lists, or documents of the EmployerCompany; or(3) any confidential information or trade secrets of any third party provided to the Company in confidence or subject to other use or disclosure restrictions or limitations; and (4) any other information, written, oral, or electronic, whether existing now or at some time in the future, whether pertaining to current or future developments, and whether previously accessed during the Executive’s tenure with the Company or to be accessed during his future employment with the Company, which pertains to the Company’s affairs or interests or with whom or how the Company does business. The Company acknowledges and agrees that Confidential Information does not include (i) information properly in the public domain, or (ii) information in the Executive’s possession prior to the date of his original employment with the Company (or its predecessors), except to the extent that such information is or has become a trade secret of the Company or is or otherwise has become the property of the Company. Notwithstanding anything to the contrary above, from time to time in the execution of the Executive’s duties hereunder, the Executive may disclose Confidential Information to unaffiliated third parties in connection with potential business transactions on behalf of Company (for example, an asset sale or acquisition), provided that any such third parties execute a confidentiality agreement with respect to such Confidential Information.
H. Except as otherwise permitted in subparagraph G above, in the event that the Executive intends to communicate information to any individual(s), entity or entities (other than the Company), to permit access by any individual(s), entity or entities (other than the Company), or to use information for the Executive’s own account or for the account of any individual(s), entity or entities (other than the Company) and such information would be Confidential Information hereunder but for the exceptions set out at (i) and (ii) of subparagraph G of this Agreement, the Executive shall notify the Company of such intent in writing, including a description of such information, no less than fifteen (15) days prior to such communication, access or use.
I. During and after the term of employment hereunder, the Executive will not remove from the Company’s premises any documents, records, files, notebooks, correspondence, reports, video or audio recordings, computer printouts, computer programs, computer software, price lists, microfilm, drawings or other similar documents containing Confidential Information, including copies thereof, whether prepared by him or others, except in connection with the performance of his duties, and in such cases, will promptly return such items to the Company. Upon termination of his employment with the Company, all such items including summaries or copies thereof, then in the Executive’s possession, shall be returned to the Company immediately.
J. The Executive recognizes and agrees that all ideas, inventions, patents, copyrights, copyright designs, trade secrets, trademarks, processes, discoveries, enhancements, software, source code, catalogues, prints, business applications, plans, writings, and other developments or improvements and all other intellectual property and proprietary rights and any derivative work based thereon (the “Inventions”) made, conceived, or completed by the Executive, alone or with others, during the term of his employment, whether or not during working hours, that are within the scope of the Company’s business operations or that relate to any of the Company’s work or projects (including any and all inventions based wholly or in part upon ideas conceived during the Executive’s employment with the Company), are the sole and exclusive property of the Company. The Executive further agrees that (1) he will promptly disclose all Inventions to the Company and hereby assigns to the Company all present and future rights he has or may have in those Inventions, including without limitation those relating to patent, copyright, trademark or trade secrets; and (2) all of the Inventions eligible under the copyright laws are “work made for hire.” At the request of the Company, the Executive will do all things deemed by the Company to be reasonably necessary to perfect title to the Inventions in the Company and to assist in obtaining for the Company such patents, copyrights or other protection as may be provided under law and desired by the Company, including but not limited to executing and signing any and all relevant applications, assignments or other instruments. Notwithstanding the foregoing, the Company hereby notifies the Executive that the provisions of this Paragraph 8 shall not apply to any Inventions for which no equipment, supplies, facility or trade secret information of the Company was used and which were developed entirely on the Executive’s own time, unless (1) the Invention relates (i) to the business of the Company, or (ii) to actual or demonstrably anticipated research or development of the Company, or (2) the Invention results from any work performed by the Executive for the Company.
K. The Executive acknowledges and agrees that all customer lists, supplier lists, and customer and supplier information, including, without limitation, addresses and telephone numbers, are and shall remain the exclusive property of the Company, regardless of whether such information was developed, purchased, acquired, or otherwise obtained by the Company or the Executive. The Executive agrees to furnish to the Company on demand at any time during the term of this Agreement, and upon termination of this Agreement, his complete list of the correct names and places of business and telephone numbers of all of its customers served by him, including all copies thereof wherever located. The Executive recognizes and agrees that he has no expectation of privacy with respect to the Company’s telecommunications, networking or information processing systems (including, without limitation, stored computer files, email messages and voice messages) and that the Executive’s activity and any files or messages on or using any of those systems may be monitored at any time without notice.
L. The Company does not wish to incorporate any unlicensed or unauthorized material into its products or services or those of its subsidiaries. Therefore, the Executive agrees that he will not knowingly disclose to the Company, use in the Company’s business, or cause the Company to use, any information or material which is confidential or proprietary to any third party including, but not limited to, any former employer, competitor or client, unless the Company has a right to receive and use such information. The Executive will not incorporate into his work any material which is subject to the copyrights of any third party unless the Company has a written agreement with such third party or otherwise has the right to receive and use such information.
M. It is agreed that any breach or threatened breach of any of the Executive’s covenants contained in this Paragraph 8 will result in irreparable harm and continuing damages to the Company and its business and that the Company’s remedy at law for any such breach or threatened breach will be inadequate and, accordingly, in addition to any and all other remedies that may be available to the Company at law or in equity in such event, any court of competent jurisdiction may issue a decree of specific performance or issue a temporary and permanent injunction, without the neces
Appears in 1 contract
Protective Covenants. The Executive acknowledges and agrees that solely by virtue of his employment by, and relationship with, the Employer, he has acquired and will continue to acquire "Confidential Information," ", as hereinafter defined, as well as special knowledge of the Employer's relationships with its customers, and that, but for his association with the Employer, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer has long term, near-permanent relationships with its customers, and that those relationships were developed at great expense and difficulty to the Employer over several years of close and continuing involvement; (ii) that the Employer's relationships and goodwill with its customers are and will continue to be valuable, special and unique assets of the Employer; and (iii) that the Employer has the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing models, formulas, software applications and designs and other technologies and devices utilized in the management of communicationsInformation. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is are hereby acknowledged, and as a condition precedent to the Employer entering into this Agreement, and as an inducement to the Employer to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employer.;
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.;
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.;
D. The Executive agrees that, if Executive ceases to be employed by Employer during the time of his employment and for a period of six (6) months after the termination of the Executive's employment hereunder for any reason whatsoever or for no reason, including without limitation the non-renewal of this Agreement by the Companywhether voluntary or involuntary, the Executive will not, for a period of two years , except on behalf of the Employer, anywhere in the United States of America or in any other place or venue where the Employer or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct or operate, its business prior to the date of the termination of Executive's employment:
(1) directly or indirectly, contact, solicit or direct any person, firm, corporation, association or other entity to contact or solicit, any of the Employer's customers or prospective customers (as hereinafter defined) for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer to its customers during the term hereof;
(2) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation)Employer, nor solicit any of the Employer's then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to provided, however, the Executive may hire any then current employee (or an individual who was an employee employees of the Employer who initiated contact with the Executive and have announced their intent to terminate their employment with the Employer;
E. The Executive agrees that both during his employment and thereafter the year preceding such hire) Executive will not, for any reason whatsoever, use for himself or disclose to any person not employed by the Employer any "Confidential Information" of the Employer into employment acquired by the Executive during his relationship with himself the Employer. The Executive further agrees to use Confidential Information solely for the purpose of performing duties with the Employer and further agrees not to use Confidential Information for his own private use or any company, individual or other entity; or
(3) directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson commercial purposes or in any other capacityway detrimental to the Employer. The Executive agrees that "Confidential Information" includes but is not limited to: (1) any financial, whether partbusiness, planning, operations, services, potential services, products, potential products, technical information and/or know-time or full-timehow, become associated with any business involved in the designformulas, manufactureproduction, purchasing, marketing, sales, personnel, customer, broker, supplier, or servicing of products then constituting ten percent (10%) or more of the annual revenues other information of the Employer; or(2) any papers, data, records, processes, methods, techniques, systems, models, samples, devices, equipment, compilations, invoices, customer lists, or documents of the Employer; (3) any confidential information or trade secrets of any third party provided to the Employer in confidence or subject to other use or disclosure restrictions or limitations; and (4) any other information, written, oral, or electronic, whether existing now or at some time in the future, whether pertaining to current or future developments, which pertains to the Employer's affairs or interests or with whom or how the Employer does business. The Employer acknowledges and agrees that Confidential Information does not include (1) information properly in the public domain, or (2) information in the Executive's possession prior to the date of his original employment with the Employer;
Appears in 1 contract
Sources: Employment Agreement (System Software Associates Inc)
Protective Covenants. The Executive acknowledges and agrees that solely by virtue of his employment by, and relationship with, the Employer, he has acquired and will acquire "“Confidential Information," ”, as hereinafter defined, as well as special knowledge of the Employer's ’s relationships with its customerscustomers and suppliers, and that, but for his association with the Employer, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer has long term, near-permanent relationships with its customerscustomers and suppliers, and that those relationships were developed at great expense and difficulty to the Employer over several years of close and continuing involvement; (ii) that the Employer's ’s relationships and goodwill with its customers and suppliers are and will continue to be valuable, special and unique assets of the Employer and that the identity, business needs and methods of conducting business of, or relating to, each of its customers and suppliers is kept under tight security with the Employer and cannot be readily ascertained from publicly available materials or from materials available to the Employer’s competitors; and (iii) that the Employer has the following protectable protectible interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing modelsinformation and strategy, formulascost data, software applications product specifications, product development and designs obsolescence policies and other technologies and devices utilized in the management of communicationstime table. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and as a condition precedent to the Employer entering into this Agreement, and as an inducement to the Employer to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employer.
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.
D. The Executive agrees that, if Executive ceases to be employed during the Executive’s employment by Employer hereunder and for a period of one (1) year after the termination thereof, for any reason, including without limitation the non-renewal of this Agreement reason whatsoever or for no reason and whether such termination was voluntary or involuntary by the CompanyExecutive, the Executive will not, for a period of two years , not (except on behalf of the EmployerLBI and L&J until December 31, 2008, in accordance with Paragraph 2) anywhere in the United States of America or in any other place or venue where the Employer or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct or operate, its business prior to the date of the termination of Executive's employmentAmerica:
(1i) directly or indirectly, contact, solicit or accept if offered to the Executive, or direct any person, firm, corporation, association or other entity to contact contact, solicit or solicitaccept if offered to it, any of the Employer's customers ’s customers, prospective customers, or prospective customers suppliers (as hereinafter defined) for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer to its customers during the term hereofwhile Executive was an employee of Employer hereunder;
(2ii) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit (excluding ▇▇▇▇▇▇ ▇▇▇▇▇▇) any of the Employer's ’s then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire (excluding ▇▇▇▇▇▇ ▇▇▇▇▇▇) any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself or any company, individual or other entity; or;
(3iii) directly or indirectly, for his own account or on behalf of others, engage in any business activity that manufactures, distributes or sells any products and/or services that are the same as or similar to the products and services provided by the Employer to its customers during the term hereof, or seek to purchase products, goods or services from any person, firm or other business enterprise providing such products, goods or services to the Employer during the term hereof, or seek to cause any such supplier of products, goods and/or services to Employer to refrain from providing such products, goods, or services to the Employer. Executive agrees that during the Executive’s employment by Employer hereunder, Executive will not (except on behalf of LBI and L&J until December 31, 2008, in accordance with Paragraph 2):
(a) directly or indirectly, whether as an investor (excluding investments representing less than one five percent (15%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the design, manufacture, marketing, or servicing of products then constituting ten percent (10%) or more of the annual revenues of the Employer or its affiliates; or
(b) act as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the Employer’s or its affiliates’ customers, prospective customers, or suppliers (as hereinafter defined), with respect to or in any way with regard to any aspect of the Employer’s or its affiliates’ business and/or any other business activities in which the Employer or its affiliates’ engages during the term hereof.
E. The Executive acknowledges and agrees that the scope described in this Paragraph 8 is necessary and reasonable in order to protect the Employer in the conduct of its business and that, if the Executive becomes employed by another employer, he shall be required to disclose the existence of this Paragraph 8 to such employer.
F. For purposes of this Paragraph 8, “customer” shall be defined as any person, firm, corporation, association, or entity that purchased any type of product and/or service from the Employer or is or was doing business with the Employer within the twelve (12) month period immediately preceding termination of the Executive’s employment by Employer hereunder. For purposes of this Paragraph 8, “prospective customer” shall be defined as any person, firm, corporation, association, or entity to whom a proposal was made on behalf of Employer or which was contacted or solicited by Employer within the twelve (12) month period immediately preceding termination of the Executive’s employment for the purpose of having such persons, firms, corporations, associations, or entities become a customer of the Employer. For purposes of this Paragraph 8, “supplier” shall be defined as any person, firm, corporation, association, or entity who is or was doing business with the Employer or who was contacted or solicited by the Employer (whether directly or indirectly) or who contacted or solicited the Employer (whether directly or indirectly) within the twelve (12) month period immediately preceding termination of the Executive’s employment hereunder.
G. The Executive agrees that both during his employment and thereafter the Executive will not, for any reason (other than for the benefit of the Employer), use for himself or disclose to any person not employed by the Employer any “Confidential Information” of the Employer acquired by the Executive during his employment by the Employer. The Executive further agrees to use Confidential Information solely for the purpose of performing duties with, or for, the Employer and further agrees not to use Confidential Information for his own private use or commercial purposes or in any way materially detrimental to the Employer. The Executive agrees that “Confidential Information” includes but is not limited to: (i) any confidential or proprietary information regarding or any financial, engineering, business, planning, operations, services, potential services, products, potential products, technical information and/or know-how, organization charts, formulas, business plans, production, purchasing, marketing, pricing, sales, profit, personnel, customer, broker, supplier, or other lists or information of the Employer; or(ii) any confidential or proprietary papers, data, records, processes, methods, techniques, systems, models, samples, devices, equipment, compilations, invoices, customer lists, or documents of the Employer or of any customer of the Employer which Executive knows or has reason to believe is intended by the customer to be kept confidential ; and (iii) any other information, written, oral, or electronic, whether existing now or at some time in the future, whether pertaining to current or future developments, and whether previously accessed during the Executive’s employment with the Employer or to be accessed during his future employment with the Employer, which pertains to the Employer’s affairs or interests or with whom or how the Employer does business. The Employer acknowledges and agrees that Confidential Information does not include (a) information properly in the public domain, (b) information in the Executive’s possession prior to the date of his original employment with the Employer, (c) information subsequently made available to Executive by an independent third party provided such third party has a lawful right to make such disclosure, (d) information independently developed or acquired by the Executive without violating any obligations under this Agreement, or (e) information required by law or judicial decree to be disclosed.
H. During and after Executive’s employment hereunder, the Executive will not remove from the Employer’s premises any documents, records, files, notebooks, correspondence, reports, video or audio recordings, computer printouts, computer programs, computer software, price lists, microfilm, drawings or other similar documents containing Confidential Information, including copies thereof, whether prepared by him or others, except in accordance with the performance of this Agreement or his duties as an employee of Employer, and in such cases, will promptly return such items to the Employer. Upon termination of his employment with the Employer, all such items including summaries or copies thereof, then in the Executive’s possession, shall be returned to the Employer immediately.
I. The Executive recognizes and agrees that all inventions, conceptions, patents, copyrights, copyright designs, trade secrets, trademarks, processes, discoveries, improvements, enhancements, software, source code, catalogues, prints, business applications and other developments or improvements and all other intellectual property and proprietary rights and any derivative work based thereon (the “Inventions”) made, conceived or completed by the Executive, alone or with others, during the term of his employment, whether or not during working hours, that are within the scope of the Employer’s business operations or that relate to any of the Employer’s work or projects are the sole and exclusive property of the Employer. The Executive further agrees that (i) he will promptly disclose all Inventions (which pursuant to this Paragraph 8J are the sole and exclusive property of the Employer) to the Employer and hereby assigns to the Employer all present and future rights he has or may have in those Inventions, including without limitation those relating to patent, copyright, trademark or trade secrets; and (ii) all Inventions (which pursuant to this Paragraph 8J are the sole and exclusive property of the Employer) eligible under the copyright laws are “work made for hire.” At the request of the Employer and at Employer’s sole cost and expense, the Executive will do all things deemed by the Employer to be reasonably necessary to perfect title to the Inventions (which pursuant to this Paragraph 8J are the sole and exclusive property of the Employer) in the Employer and to assist in obtaining for the Employer such patents, copyrights or other protection as may be provided under law and desired by the Employer, including but not limited to executing and signing any and all relevant applications, assignments or other instruments. Notwithstanding the foregoing, the Employer hereby notifies the Executive that the provisions of this Paragraph 8 shall not apply to any Inventions for which no equipment, supplies, facility or trade secret information of the Employer was used and which were developed entirely on the Executive’s own time, unless (a) the Invention relates (I) to the business of the Employer, or (II) to actual or demonstrably anticipated research or development of the Employer, or (b) the Invention results from any work performed by the Executive for the Employer.
J. The Executive acknowledges and agrees that all customer lists, supplier lists, and customer and supplier information, including, without limitation, addresses and telephone numbers, are and shall remain the exclusive property of the Employer, regardless of whether such information was developed, purchased, acquired, or otherwise obtained by the Employer or the Executive. The Executive agrees to furnish to the Employer on demand at any time during the term of this Agreement, and upon termination of this Agreement, a complete list of the correct names and places of business and telephone numbers of all of its customers served by him. The Executive further agrees, on demand, to immediately notify the Employer of the name and address of any new customer, and report all changes of a location of old customers, so that upon the termination of this Agreement, the Employer will have a complete list of the correct names and addresses of all of its customers with which the Executive has had dealings. The Executive also agrees to furnish to the Employer on demand at any time during the term of this Agreement, and upon the termination of this Agreement, copies of any other records, notes, computer printouts, computer programs, computer software, price lists, microfilm, or any other documents related to the Employer’s business. The Executive recognizes and agrees that he has no expectation of privacy with respect to the Employer’s telecommunications, networking or information processing systems (including, without limitation, stored computer files, email messages and voice messages) and that the Executive’s activity and any files or messages on or using any of those systems may be monitored at any time without notice.
K. The Executive acknowledges that he may become aware of “material” nonpublic information relating to customers whose stock is publicly traded. The Executive acknowledges that he is prohibited by law as well as by Employer policy from trading in the shares of such customers while in possession of such information or directly or indirectly disclosing such information to any other persons so that they may trade in these shares. For purposes of this Paragraph 8.K, “material” information may include any information, positive or negative, which might be of significance to an investor in determining whether to purchase, sell or hold the stock of publicly traded customers. Information may be significant for this purpose even if it would not alone determine the investor’s deci
Appears in 1 contract
Protective Covenants. The Executive acknowledges and agrees that solely by virtue of his employment by, and relationship with, the Employer, he has acquired and will acquire "“Confidential Information," ”, as hereinafter defined, as well as special knowledge of the Employer's ’s relationships with its customerscustomers and suppliers, and that, but for his association with the Employer, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer has long term, near-permanent relationships with its customerscustomers and suppliers, and that those relationships were developed at great expense and difficulty to the Employer over several years of close and continuing involvement; and (ii) that the Employer's ’s relationships and goodwill with its customers and suppliers are and will continue to be valuable, special and unique assets of the Employer; Employer and (iii) that the identity of its customers and suppliers is kept under tight security with the Employer has and cannot be readily ascertained from publicly available materials or from materials available to the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing models, formulas, software applications and designs and other technologies and devices utilized in the management of communicationsEmployer’s competitors. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and as a condition precedent to the Employer entering into this Agreement, and as an inducement to the Employer to do so, the Executive hereby represents, warrants, and covenants as follows:
A. (a) The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employer.
B. (b) The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.
C. (c) The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.
D. (d) The Executive agrees that, if Executive ceases during the time of his employment with the Employer and for a period of one (1) year following the later of (i) the termination of the Executive’s employment hereunder pursuant to be employed by Employer Paragraph 6(b) or 6(d), or (ii) one year following the date of the last payment provided for any reason, including without limitation the non-renewal of this Agreement by the Companyunder Paragraph 7(b), the Executive will not, for a period of two years , except on behalf of the Employer, anywhere in the United States of America North America, or in any other place or venue where the Employer or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct or operate, its business prior to the date of the Executive’s termination of Executive's employment:
(1i) directly or indirectly, contact, solicit or direct any person, firm, corporation, association or other entity to contact or solicit, any of the Employer's ’s customers or prospective customers (as hereinafter defined) for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer to its customers during the term hereof;. In addition, the Executive will not disclose the identity of any such customers to any person, firm, corporation, association, or other entity for any reason or purpose whatsoever; or
(2ii) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit any of the Employer's ’s then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself or any company, individual or other entity; or
(3iii) directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the design, manufacture, marketinga business similar to, or servicing of products then constituting ten percent (10%) or more comparable to, the business of the annual revenues Employer or any affiliate of the Employer; or
(e) The Executive acknowledges and agrees that the scope described above is necessary and reasonable in order to protect the Employer in the conduct of its business and that, if the Executive becomes employed by another employer, he shall be required to disclose the existence of this Paragraph 8 to such employer and the Executive hereby consents to and the Employer is hereby given permission to disclose the existence of this Paragraph 8 to such employer.
(f) For purposes of this Paragraph 8, “customer” shall be defined as any person, firm, corporation, association, or entity that purchased any type of product and/or service from the Employer or is or was doing business with the Employer or the Executive within the twelve (12) month period immediately preceding termination of the Executive’s employment.
(g) The Executive agrees that both during his employment and thereafter the Executive will not, for any reason whatsoever, use for himself or disclose to any person not employed by the Employer any “Confidential Information” of the Employer acquired by the Executive during his relationship with the Employer, both prior to and during the term of this Agreement. The Executive further agrees to use Confidential Information solely for the purpose of performing duties with, or for, the Employer and further agrees not to use Confidential Information for his own private use or commercial purposes or in any way detrimental to the Employer. The Executive agrees that “Confidential Information” includes but is not limited to: (1) any financial, engineering, business, planning, operations, services, potential services, products, potential products, technical information and/or know-how, organization charts, formulas, business plans, production, purchasing, marketing, pricing, sales, profit, personnel, customer, broker, supplier, or other lists or information of the Employer; (2) any papers, data, records, processes, methods, techniques, systems, models, samples, devices, equipment, compilations, invoices, customer lists, or documents of the Employer; (3) any confidential information or trade secrets of any third party provided to the Employer in confidence or subject to other use or disclosure restrictions or limitations; and (4) any other information, written, oral, or electronic, whether existing now or at some time in the future, whether pertaining to current or future developments, and whether previously accessed during the Executive’s tenure with the Employer or to be accessed during his future employment with the Employer, which pertains to the Employer’s affairs or interests or with whom or how the Employer does business. The Employer acknowledges and agrees that Confidential Information does not include (a) information properly in the public domain, (b) information in the Executive’s possession prior to the date of his original association with the Employer, or (c) information which is required to be disclosed by law or legal process provided that the Executive notifies the Employer prior to or, if such advance notification is not possible, promptly after such disclosure and cooperates with the Employer in obtaining any protective order regarding or other confidential treatment of such information.
(h) In the event that the Executive intends to communicate information to any individual(s), entity or entities (other than the Employer), to permit access by any individual(s), entity or entities (other than the Employer), or to use information for the Executive’s own account or for the account of any individual(s), entity or entities (other than the Employer) and such information would be Confidential Information hereunder but for the exceptions set out at (a) and (b) of Paragraph 8(g) of this Agreement, the Executive shall notify the Employer of such intent in writing, including a description of such information, no less than fifteen (15) days prior to such communication, access or use.
(i) During and after the term of employment hereunder, the Executive will not remove from the Employer’s premises any documents, records, files, notebooks, correspondence, reports, video or audio recordings, computer printouts, computer programs, computer software, price lists, microfilm, drawings or other similar documents containing Confidential Information, including copies thereof, whether prepared by him or others, except as his duty shall require, and in such cases, will promptly return such items to the Employer. Upon termination of his employment with the Employer, all such items including summaries or copies thereof, then in the Executive’s possession, shall be returned to the Employer immediately.
(j) The Executive recognizes and agrees that all ideas, inventions, patents, copyrights, copyright designs, trade secrets, trademarks, processes, discoveries, enhancements, software, source code, catalogues, prints, business applications, plans, writings, and other developments or improvements and all other intellectual property and proprietary rights and any derivative work based thereon (the “Inventions”) made, conceived or completed by the Executive, alone or with others, during the term of his employment, whether or not during working hours, that are within the scope of the Employer’s business operations or that relate to any of the Employer’s work or projects (including any and all inventions based wholly or in part upon ideas conceived during the Executive’s employment with the Employer), are the sole and exclusive property of the Employer. The Executive further agrees that (1) he will promptly disclose all Inventions to the Employer and hereby assigns to the Employer all present and future rights he has or may have in those Inventions, including without limitation those relating to patent, copyright, trademark or trade secrets; and (2) all of the Inventions eligible under the copyright laws are “work made for hire.” At the request of the Employer, the Executive will do all things deemed by the Employer to be reasonably necessary to perfect title to the Inventions in the Employer and to assist in obtaining for the Employer such patents, copyrights or other protection as may be provided under law and desired by the Employer, including but not limited to executing and signing any and all relevant applications, assignments or other instruments. Notwithstanding the foregoing, pursuant to the Employee Patent Act, Illinois Public Act 83-493, the Employer hereby notifies the Executive that the provisions of this Paragraph 8 shall not apply to any Inventions for which no equipment, supplies, facility or trade secret information of the Employer was used and which were developed entirely on the Executive’s own time, unless (1) the Invention relates (i) to the business of the Employer, or (ii) to actual or demonstrably anticipated research or development of the Employer, or (2) the Invention results from any work performed by the Executive for the Employer.
(k) The Executive acknowledges and agrees that all customer lists, supplier lists, and customer and supplier information, including, without limitation, addresses and telephone numbers, are and shall remain the exclusive property of the Employer, regardless of whether such information was developed, purchased, acquired, or otherwise obtained by the Employer or the Executive. The Executive also agrees to furnish to the Employer on demand at any time during the term of this Agreement, and upon the termination of this Agreement, any other records, notes, computer printouts, computer programs, computer software, price lists, microfilm, or any other documents related to the Employer’s business, including originals and copies thereof. The Executive recognizes and agrees that he has no expectation of privacy with respect to the Employer’s telecommunications, networking or information processing systems (including, without limitation, stored computer files, email messages and voice messages) and that the Executive’s activity and any files or messages on or using any of those systems may be monitored at any time without notice.
(l) The Executive acknowledges that he may become aware of “material” nonpublic information relating to customers whose stock is publicly traded. The Executive acknowledges that he is prohibited by law as well as by Employer policy from trading in the shares of such customers while in possession of such information or directly or indirectly disclosing such information to any other persons so that they may trade in these shares. For purposes of this Paragraph 8(l), “material” information may include any information, positive or negative, which might be of significance to an investor in determining whether to purchase, sell or hold the stock of publicly traded customers. Information may be significant for this purpose even if it would not alone determine the investor’s decision. Examples include a potential business acquisition, internal financial information that departs in any way from what the market would expect, the acquisition or loss of a major contract, or an important financing transaction.
(m) The Employer does not wish to incorporate any unlicensed or unauthorized material into its products or services or those of its subsidiaries. Therefore, the Executive agrees that he will not knowingly disclose to the Employer, use in the Employer’s business, or cause the Employer to use, any information or material which is confidential or proprietary to any third party including, but not limited to, any former employer, competitor or client, unless the Employer has a right to receive and use such information. The Executive will not incorporate into his work any material which is subject to the copyrights of any third party unless the Employer has a written agreement with such third party or otherwise has the right to receive and use such information.
(n) It is agreed that any breach or anticipated or threatened breach of any of the Executive’s covenants contained in this Paragraph 8 will result in irreparable harm and continuing damages to the Employer and its business and that the Employer’s remedy at law for any such breach or anticipated or threatened breach will be inadequate and, accordingly, in addition to any and all other remedies that may be available to the Employer at law or in equity in such event, any court of competent jurisdiction may issue a decree of specific performance or issue a temporary and permanent injunction, without the necessity of the Employer posting bond or furnishing other security and without proving special damages or irreparable injury, enjoining and restricting the breach, or threatened breach, of any such covenant, including, but not limited to, any injunction restraining the Executive from disclosing, in whole or part, any Confidential Information. The Executive acknowledges the truthfulness of all factual statements in this Agreement and agrees that he is estopped from and will not make any factual statement in any proceeding that is contrary to this Agreement or any part thereof.
Appears in 1 contract
Sources: Employment Agreement (Usf Corp)
Protective Covenants. The Executive acknowledges and agrees that solely by virtue of his her employment by, and relationship with, the Employer, he she has acquired and will acquire "“Confidential Information," ”, as hereinafter defined, as well as special knowledge of the Employer's ’s relationships with its customerscustomers and suppliers, and that, but for his her association with the Employer, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer has long term, near-permanent relationships with its customerscustomers and suppliers, and that those relationships were developed at great expense and difficulty to the Employer over several years of close and continuing involvement; (ii) that the Employer's ’s relationships and goodwill with its customers and suppliers are and will continue to be valuable, special and unique assets of the Employer and that the identity, business needs and methods of conducting business of, or relating to, each of its customers and suppliers is kept under tight security with the Employer and cannot be readily ascertained from publicly available materials or from materials available to the Employer’s competitors; and (iii) that the Employer has the following protectable protectible interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing modelsPricing information and strategy, formulascost data, software applications product specifications, product development and designs obsolescence policies and time table, Executive agrees not to disclose any of the foregoing information to any person, firm, corporation, association, or other technologies and devices utilized in the management of communicationsentity for any reason or purpose whatsoever. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and as a condition precedent to the Employer entering into this Agreement, and as an inducement to the Employer to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his her free and voluntary act, after having determined that the provisions contained herein are of a material benefit to himher, and that the duties and obligations imposed on him her hereunder are fair and reasonable and will not prevent him her from earning a comparable livelihood following the termination of his her employment with the Employer.
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he she so chooses.
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.
D. The Executive agrees that, if Executive ceases to be employed by Employer for any reason, including without limitation that during the non-renewal Term of this Agreement by the CompanyAgreement, and for so long thereafter as Executive is providing services under any agreement or understanding with Employer, Parent or any affiliate, the Executive will not, for a period of two years , except on behalf of the Employer, anywhere in the United States of America or in any other place or venue where the Employer or any affiliate, subsidiary, or division thereof Buyer now conducts or operates, or may conduct or operate, its business prior to the date of the Executive’s termination of Executive's employment:
(1i) directly or indirectly, contact, solicit or accept if offered to the Executive, or direct any person, firm, corporation, association or other entity to contact contact, solicit or solicitaccept if offered to it, any of the Employer's customers ’s customers, prospective customers, or prospective customers suppliers (as hereinafter defined) for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer to its customers during the term hereof;; or
(2ii) solicit or accept if offered to himher, with or without solicitation, on his her own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit any of the Employer's ’s then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself herself or any company, individual or other entity; or. It is understood and agreed that the limitations and restrictions set forth in this Paragraph 10.D shall not supersede, amend or limit the provisions of that certain Non-Disclosure, Non-Solicitation and Non-Competition Agreement between Executive and Buyer dated this date.
E. Executive agrees that during the Term of this Agreement, and for so long thereafter as Executive is providing services under any agreement or understanding with Employer, Parent or any affiliate, Executive will not:
(3i) directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the design, manufacture, marketing, or servicing of products then constituting ten percent (10%) or more of the annual revenues of the Employer or its Affiliates; or
(ii) act as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the Employer’s or its Affiliates’ customers, prospective customers, or suppliers (as hereinafter defined), with respect to or in any way with regard to any aspect of the Employer’s or its Affiliates’ business and/or any other business activities in which the Employer or its Affiliates’ engages during the term hereof.
F. The Executive acknowledges and agrees that the scope described in this Paragraph 10 is necessary and reasonable in order to protect the Employer in the conduct of its business and that, if the Executive becomes employed by another employer, she shall be required to disclose the existence of this Paragraph 10 to such employer and the Executive hereby consents to and the Employer is hereby given permission to disclose the existence of this Paragraph 10 to such employer.
G. For purposes of this Paragraph 10, “customer” shall be defined as any person, firm, corporation, association, or entity that purchased any type of product and/or service from the Employer or is or was doing business with the Employer or the Executive within the twelve (12) month period immediately preceding termination of the Executive’s employment. For purposes of this Paragraph 10, “prospective customer” shall be defined as any person, firm, corporation, association, or entity contacted or solicited by the Employer or the Executive (whether directly or indirectly) or who contacted the Employer or the Executive (whether directly or indirectly) within the twelve (12) month period immediately preceding termination of the Executive’s employment for the purpose of having such persons, firms, corporations, associations, or entities become a customer of the Employer. For purposes of this Paragraph 10, “supplier” shall be defined as any person, firm, corporation, association, or entity who is or was doing business with the Employer or the Executive or who was contacted or solicited by the Employer or the Executive (whether directly or indirectly) or who contacted or solicited the Employer or the Executive (whether directly or indirectly) within the twelve (12) month period immediately preceding termination of the Executive’s employment.
H. The Executive agrees that both during her employment and thereafter the Executive will not, for any reason whatsoever, use for herself or disclose to any person not employed by the Employer any “Confidential Information” of the Employer acquired by the Executive during her relationship with the Employer, both prior to and during the term of this Agreement. The Executive further agrees to use Confidential Information solely for the purpose of performing duties with, or for, the Employer and further agrees not to use Confidential Information for her own private use or commercial purposes or in any way detrimental to the Employer. The Executive agrees that “Confidential Information” includes but is not limited to: (i) any financial, engineering, business, planning, operations, services, potential services, products, potential products, technical information and/or know-how, organization charts, formulas, business plans, production, purchasing, marketing, pricing, sales, profit, personnel, customer, broker, supplier, or other lists or information of the Employer; or(ii) any papers, data, records, processes, methods, techniques, systems, models, samples, devices, equipment, compilations, invoices, customer lists, or documents of the Employer; (iii) any confidential information or trade secrets of any third party provided to the Employer in confidence or subject to other use or disclosure restrictions or limitations; and (iv) any other information, written, oral, or electronic, whether existing now or at some time in the future, whether pertaining to current or future developments, and whether previously accessed during the Executive’s tenure with the Employer or to be accessed during her future employment with the Employer, which pertains to the Employer’s affairs or interests or with whom or how the Employer does business. The Employer acknowledges and agrees that Confidential Information does not include (x) information properly in the public domain, or (y) information in the Executive’s possession prior to the date of her original employment with the Employer, or any predecessor company, except to the extent that such information is or has become a trade secret of the Employer or is or otherwise has become the property of the Employer.
I. In the event that the Executive intends to communicate information to any individual(s), entity or entities (other than the Employer), to permit access by any individual(s), entity or entities (other than the Employer), or to use information for the Executive’s own account or for the account of any individual(s), entity or entities (other than the Employer) and such information would be Confidential Information hereunder but for the exceptions set out at clauses (i) and (ii) of Paragraph 10H of this Agreement, the Executive shall notify the Employer of such intent in writing, including a description of such information, no less than fifteen (15) days prior to such communication, access or use.
J. During and after the term of employment hereunder, the Executive will not remove from the Employer’s premises any documents, records, files, notebooks, correspondence, reports, video or audio recordings, computer printouts, computer programs, computer software, price lists, microfilm, drawings or other similar documents containing Confidential Information, including copies thereof, whether prepared by her or others, except as her duties shall require, and in such cases, will promptly return such items to the Employer. Upon termination of her employment with the Employer, all such items including summaries or copies thereof, then in the Executive’s possession, shall be returned to the Employer immediately.
K. The Executive recognizes and agrees that all ideas, inventions, conceptions, patents, copyrights, copyright designs, trade secrets, trademarks, processes, discoveries, improvements, enhancements, software, source code, catalogues, prints, business applications, plans, writings, and other developments or improvements and all other intellectual property and proprietary rights and any derivative work based thereon (the “Inventions”) made, conceived, or completed by the Executive, alone or with others, during the term of her employment, whether or not during working hours, that are within the scope of the Employer’s business operations or that relate to any of the Employer’s work or projects (including any and all inventions based wholly or in part upon ideas conceived during the Executive’s employment with the Employer), are the sole and exclusive property of the Employer. The Executive further agrees that (i) she will promptly disclose all Inventions to the Employer and hereby assigns to the Employer all present and future rights she has or may have in those Inventions, including without limitation those relating to patent, copyright, trademark or trade secrets; and (ii) all of the Inventions eligible under the copyright laws are “work made for hire.” At the request of the Employer, the Executive will do all things deemed by the Employer to be reasonably necessary to perfect title to the Inventions in the Employer and to assist in obtaining for the Employer such patents, copyrights or other protection as may be provided under law and desired by the Employer, including but not limited to executing and signing any and all relevant applications, assignments or other instruments. Notwithstanding the foregoing, the Employer hereby notifies the Executive that the provisions of this Paragraph 10 shall not apply to any Inventions for which no equipment, supplies, facility or trade secret information of the Employer was used and which were developed entirely on the Executive’s own time, unless (x) the Invention relates (I) to the business of the Employer, or (II) to actual or demonstrably anticipated research or development of the Employer, or (y) the Invention results from any work performed by the Executive for the Employer.
L. The Executive acknowledges and agrees that all customer lists, supplier lists, and customer and supplier information, including, without limitation, addresses and telephone numbers, are and shall remain the exclusive property of the Employer, regardless of whether such information was developed, purchased, acquired, or otherwise obtained by the Employer or the Executive. The Executive agrees to furnish to the Employer on demand at any time during the term of this Agreement, and upon termination of this Agreement, her complete list of the correct names and places of business and telephone numbers of all of its customers served by her, including all copies thereof wherever located. The Executive further agrees to immediately notify the Employer of the name and address of any new customer, and report all changes of a location of old customers, so that upon the termination of this Agreement, the Employer will have a complete list of the correct names and addresses of all of its customers with which the Executive has had dealings. The Executive also agrees to furnish to the Employer on demand at any time during the term of this Agreement, and upon the termination of this Agreement, any other records, notes, computer printouts, computer programs, computer software, price lists, microfilm, or any other documents related to the Employer’s business, including originals and copies thereof. The Executive recognizes and agrees that she has no expectation of privacy with respect to the Employer’s telecommunications, networking or information processing systems (including, without limitation, stored computer files, email messages and voice messages) and that the Executive’s activity and any files or messages on or using any of those systems may be monitored at any time without notice.
M. The Executive acknowledges that she may become aware of “material” nonpublic information relating to customers whose stock is publicly traded. The Executive acknowledges that she is prohibited by law as well as by Employer policy from trading in the shares of such customers while in possession of such information or directly or i
Appears in 1 contract
Protective Covenants. The Executive acknowledges and agrees -------------------- that solely by virtue of his employment by, and relationship with, the Employer, he has acquired and will acquire "Confidential Information," as hereinafter defined, as well as special knowledge of the Employer's relationships with its customers, and that, but for his association with the Employer, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer has long term, near-permanent relationships with its customers, and that those relationships were developed at great expense and difficulty to the Employer over several years of close and continuing involvement; (ii) that the Employer's relationships and goodwill with its customers are and will continue to be valuable, special and unique assets of the Employer; and (iii) that the Employer has the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: . pricing models, formulas, software applications and designs and other technologies and devices utilized in the management of communications. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and as a condition precedent to the Employer entering into this Agreement, and as an inducement to the Employer to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employer.
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.
D. The Executive agrees that, if Executive ceases during the time of his employment with the Employer and (i) in the event the Executive's services are terminated pursuant to be employed by Employer for any reasonParagraphs 7A, including without limitation the non-renewal 7D or 7E of this Agreement by Agreement, for such period as the CompanyExecutive is receiving termination pay under Paragraph 8 of this Agreement, or (ii) in the event the Executive's services are terminated pursuant to Paragraphs 7B or 7C of this Agreement, for a period of one (1) year after such termination, the Executive will not, for a period of two years , except on behalf of the Employer, anywhere in the United States of America or in any other place or venue where the Employer or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct or operate, its business prior to the date of the Executive's termination of Executive's employment:
(1) directly or indirectly, contact, solicit or direct any person, firm, corporation, association or other entity to contact or solicit, any of the Employer's customers or prospective customers (as hereinafter defined) for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer to its customers during the term hereof;
(2) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit any of the Employer's then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself or any company, individual or other entity; or
(3) directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the design, manufacture, marketing, or servicing of products then constituting ten percent (10%) or more of the annual revenues of the Employer; or
(4) act as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the Employer's customers or prospective customers (as hereinafter defined), with respect to or in any way with regard to any aspect of the Employer's business and/or any other business activities in which the Employer engages during the term hereof.
E. The Executive acknowledges and agrees that the scope described above is necessary and reasonable in order to protect the Employer in the conduct of its business and that, if the Executive becomes employed by another employer, he shall be required to disclose the existence of this Paragraph 9 to such employer and the Executive hereby consents to and the Employer is hereby given permission to disclose the existence of this Paragraph 9 to such employer.
F. For purposes of this Paragraph 9, "customer" shall be defined as any person, firm, corporation, association, or entity that purchased any type of product and/or service from the Employer or is or was doing business with the Employer or the Executive within the twelve (12) month period immediately preceding termination of the Executive's employment. For purposes of this Paragraph 9, "prospective customer" shall be defined as any person, firm, corporation, association, or entity (i) contacted or solicited by the Executive (whether directly or indirectly) or (ii) to the Executive's knowledge, contacted or solicited by any other employee or representative of the Employer, or (iii) who contacted the Executive (whether directly or indirectly) or (iv) to the Executive's knowledge, who contacted the Employer within the twelve (12) month period immediately preceding termination of the Executive's employment for the purpose of having such persons, firms, corporations, associations, or entities become a customer of the Employer.
Appears in 1 contract
Sources: Employment Agreement (Metasolv Inc)
Protective Covenants. The Executive acknowledges and agrees that -------------------- solely by virtue of his employment by, and relationship with, the Employer, he has acquired and will acquire "Confidential Information," as hereinafter defined, as well as special knowledge of the Employer's relationships with its customers, and that, but for his association with the Employer, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer has long term, near-permanent relationships with its customers, and that those relationships were developed at great expense and difficulty to the Employer over several years of close and continuing involvement; (ii) that the Employer's relationships and goodwill with its customers are and will continue to be valuable, special and unique assets of the Employer; and (iii) that the Employer has the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: . pricing models, formulas, software applications and designs and other technologies and devices utilized in the management of communications. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and as a condition precedent to the Employer entering into this Agreement, and as an inducement to the Employer to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employer.
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.
D. The Executive agrees that, if Executive ceases during the time of his employment with the Employer and (i) in the event the Executive's services are terminated pursuant to be employed by Employer for any reasonParagraphs 7A, including without limitation the non-renewal 7D or 7E of this Agreement by Agreement, for such period as the CompanyExecutive is receiving termination pay under Paragraph 8 of this Agreement, or (ii) in the event the Executive's services are terminated pursuant to Paragraphs 7B or 7C of this Agreement, for a period of one (1) year after such termination, the Executive will not, for a period of two years , except on behalf of the Employer, anywhere in the United States of America or in any other place or venue where the Employer or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct or operate, its business prior to the date of the Executive's termination of Executive's employment:
(1) directly or indirectly, contact, solicit or direct any person, firm, corporation, association or other entity to contact or solicit, any of the Employer's customers or prospective customers (as hereinafter defined) for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer to its customers during the term hereof;
(2) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit any of the Employer's then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself or any company, individual or other entity; or
(3) directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the design, manufacture, marketing, or servicing of products then constituting ten percent (10%) or more of the annual revenues of the Employer; or
(4) act as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the Employer's customers or prospective customers (as hereinafter defined), with respect to or in any way with regard to any aspect of the Employer's business and/or any other business activities in which the Employer engages during the term hereof.
E. The Executive acknowledges and agrees that the scope described above is necessary and reasonable in order to protect the Employer in the conduct of its business and that, if the Executive becomes employed by another employer, he shall be required to disclose the existence of this Paragraph 9 to such employer and the Executive hereby consents to and the Employer is hereby given permission to disclose the existence of this Paragraph 9 to such employer.
F. For purposes of this Paragraph 9, "customer" shall be defined as any person, firm, corporation, association, or entity that purchased any type of product and/or service from the Employer or is or was doing business with the Employer or the Executive within the twelve (12) month period immediately preceding termination of the Executive's employment. For purposes of this Paragraph 9, "prospective customer" shall be defined as any person, firm, corporation, association, or entity (i) contacted or solicited by the Executive (whether directly or indirectly) or (ii) to the Executive's knowledge, contacted or solicited by any other employee or representative of the Employer, or (iii) who contacted the Executive (whether directly or indirectly) or (iv) to the Executive's knowledge, who contacted the Employer within the twelve (12) month period immediately preceding termination of the Executive's employment for the purpose of having such persons, firms, corporations, associations, or entities become a customer of the Employer.
G. The Executive agrees that both during his employment and thereafter the Executive will not, for any reason whatsoever, use for himself or disclose to any person not employed by the Employer any "Confidential Information" of the Employer acquired by the Executive during his relationship with the Employer, both prior to and during the term of this
Appears in 1 contract
Sources: Employment Agreement (Metasolv Inc)
Protective Covenants. The Executive acknowledges and agrees that solely that, by virtue of his employment by, and relationship with, the with Employer, he has acquired and will acquire "“Confidential Information," ” as hereinafter defined, as well as special knowledge of the Employer's ’s relationships with its customerscustomers and business associates, and that, but for his association with the Employer, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer has long term, near-permanent relationships with its customers, customers and that those relationships were key advisors to customers which have been and will continue to be developed at great expense and difficulty to the Employer over several years of close and continuing involvementexpense; (ii) that the many of Employer's ’s relationships and goodwill with its customers and key advisors to its customers are permanent or near permanent in nature, and will continue to be valuable, special and unique assets of the Employer; and (iii) that the Employer has the following protectable foregoing are legitimate and protectible interests that which are critical to its competitive advantage in the industry banking and would be of demonstrable value in the hands of a competitor: pricing models, formulas, software applications and designs and other technologies and devices utilized in the management of communicationsfinancial services industry. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is are hereby acknowledged, and as a condition precedent to the Employer entering into this Agreement, and as an inducement to the Employer to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employer.;
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.;
C. The execution and delivery of this Agreement by the Executive does not conflict with, or will result in a breach of of, or will constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.;
D. The Executive agrees that, if Executive ceases to be employed by Employer both during his employment and for any reasona period of two (2) years thereafter, including without limitation the non-renewal of this Agreement by the Company, the Executive will not, for a period any reason whatsoever, use for himself or disclose to any person not employed by Employer any “Confidential Information” of two years , except on behalf Employer acquired by Executive during his relationship with Employer. Executive further agrees to use Confidential Information solely for the purpose of the Employer, anywhere in the United States of America performing duties with Employer and further agrees not to use Confidential Information for his own private use or commercial purposes or in any way detrimental to Employer. Executive agrees that “Confidential Information” includes but is not limited to: (1) any financial, business, planning, operations, services, potential services, products, potential products, technical information and/or know-how, formulas, purchasing, marketing, sales, personnel, customer, supplier, or other place or venue where the information of Employer or any affiliateaffiliate or subsidiary of Employer; (2) any papers, subsidiarydata, records, processes, methods, techniques, systems, samples, compilations, invoices, customer lists, or division thereof now conducts documents of Employer or operatesany affiliate or subsidiary of Employer; and (3) any confidential information or trade secrets of any third party provided to Employer or any affiliate or subsidiary of Employer in confidence or subject to other use or disclosure restrictions or limitations. Employer acknowledges and agrees that Confidential Information does not include: (1) information properly in the public domain or properly available to Executive from other sources, or may conduct or operate, its business (2) information in Executive’s possession prior to the date of his employment with Employer;
E. Upon termination of his employment with Employer, all documents, records, files, notebooks, correspondence, computer printouts, computer programs, computer software, price lists, microfilm, or other similar documents containing Confidential Information, including copies thereof, whether prepared by Executive or others, including summaries or copies thereof, then in Executive’s possession, shall be returned to Employer immediately.
F. Executive acknowledges and agrees that all Employer customer lists, and customer information, including, without limitation, addresses and telephone numbers, are and shall remain the exclusive property of Employer, regardless of whether such information was developed, purchased, acquired, or otherwise obtained by Employer, or any subsidiary or affiliate of Employer. Executive agrees to furnish to Employer on demand at any time during the term of this Agreement, and upon termination of this Agreement, his complete list of the correct names and places of business and telephone numbers of all of its customers served by him. Executive further agrees to immediately notify Employer of the name and address of any new customer, and report all changes of location of old customers, so that upon the termination of Executive's employment:this Agreement, Employer will have a complete list of the correct names and addresses of all of its customers with which Executive has had dealings. Executive also agrees to furnish to Employer on demand at any time during the term of this Agreement, and upon the termination of this Agreement, any other records, notes, computer printouts, computer programs, computer software, price lists, microfilm, or any other documents related to the business of Employer or any of its affiliates or subsidiaries, including originals and copies thereof;
G. Executive agrees that, for a period of one (1) year following any termination of this Agreement, Executive will not, directly or indirectly, contact, solicit or direct any person, firm, corporation, association or other entity to contact or solicit, any on behalf of the Employer's customers or prospective customers (as hereinafter defined) for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer to its customers during the term hereof;
(2) solicit or accept if offered to him, with or without solicitation, on his own behalf himself or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit any of the Employer's then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself or any company, individual or other entity; or
(3) directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the design, manufacture, marketing, or servicing of products then constituting ten percent (10%) or more of the annual revenues of the Employer; orof
Appears in 1 contract
Sources: Executive Employment Agreement (Midwest Banc Holdings Inc)
Protective Covenants. The Executive acknowledges and agrees that -------------------- solely by virtue of his employment by, and relationship with, the Employer, he has acquired and will acquire "Confidential Information," as hereinafter defined, as well as special knowledge of the Employer's relationships with its customers, and that, but for his association with the Employer, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer has long term, near-permanent relationships with its customers, and that those relationships were developed at great expense and difficulty to the Employer over several years of close and continuing involvement; (ii) that the Employer's relationships and goodwill with its customers are and will continue to be valuable, special and unique assets of the Employer; and (iii) that the Employer has the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing models, formulas, software applications and designs and other technologies and devices utilized in the management of communications. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and as a condition precedent to the Employer entering into this Agreement, and as an inducement to the Employer to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employer.
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.
D. The Executive agrees that, if Executive ceases during the time of his employment with the Employer and (i) in the event the Executive's services are terminated pursuant to be employed by Employer for any reasonParagraphs 7A, including without limitation the non-renewal 7D or 7E of this Agreement by Agreement, for such period as the CompanyExecutive is receiving termination pay under Paragraph 8 of this Agreement, or (ii) in the event the Executive's services are terminated pursuant to Paragraphs 7B or 7C of this Agreement, for a period of one (1) year after such termination, the Executive will not, for a period of two years , except on behalf of the Employer, anywhere in the United States of America or in any other place or venue where the Employer or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct or operate, its business prior to the date of the Executive's termination of Executive's employment:
(1) directly or indirectly, contact, solicit or direct any person, firm, corporation, association or other entity to contact or solicit, any of the Employer's customers or prospective customers (as hereinafter defined) for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer to its customers during the term hereof;
(2) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit any of the Employer's then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself or any company, individual or other entity; or
(3) directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the design, manufacture, marketing, or servicing of products then constituting ten percent (10%) or more of the annual revenues of the Employer; or
(4) act as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the Employer's customers or prospective customers (as hereinafter defined), with respect to or in any way with regard to any aspect of the Employer's business and/or any other business activities in which the Employer engages during the term hereof.
E. The Executive acknowledges and agrees that the scope described above is necessary and reasonable in order to protect the Employer in the conduct of its business and that, if the Executive becomes employed by another employer, he shall be required to disclose the existence of this Paragraph 9 to such employer and the Executive hereby consents to and the Employer is hereby given permission to disclose the existence of this Paragraph 9 to such employer.
F. For purposes of this Paragraph 9, "customer" shall be defined as any person, firm, corporation, association, or entity that purchased any type of product and/or service from the Employer or is or was doing business with the Employer or the Executive within the twelve (12) month period immediately preceding termination of the Executive's employment. For purposes of this Paragraph 9, "prospective customer" shall be defined as any person, firm, corporation, association, or entity (i) contacted or solicited by the Executive (whether directly or indirectly) or (ii) to the Executive's knowledge, contacted or solicited by any other employee or representative of the Employer, or (iii) who contacted the Executive (whether directly or indirectly) or (iv) to the Executive's knowledge, who contacted the Employer within the twelve (12) month period immediately preceding termination of the Executive's employment for the purpose of having such persons, firms, corporations, associations, or entities become a customer of the Employer.
G. The Executive agrees that both during his employment and thereafter the Executive will not, for any reason whatsoever, use for himself or disclose to any person not employed by the Employer any "Confidential Information" of the Employer acquired by the Executive during his relationship with the Employer, both prior to and during the term of this
Appears in 1 contract
Sources: Employment Agreement (Metasolv Inc)
Protective Covenants. The Executive acknowledges and agrees that solely by virtue of his employment by, and relationship with, the EmployerCompany, he has acquired and will acquire "“Confidential Information," ”, as hereinafter defined, as well as special knowledge of the Employer's Company’s relationships with its customerscustomers and suppliers, and that, but for his association with the EmployerCompany, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer Company has long term, near-permanent relationships with its customerscustomers and suppliers, and that those relationships were developed at great expense and difficulty to the Employer Company over several years of close and continuing involvement; and (ii) that the Employer's Company’s relationships and goodwill with its customers and suppliers are and will continue to be valuable, special and unique assets of the Employer; and (iii) that the Employer has the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing models, formulas, software applications and designs and other technologies and devices utilized in the management of communicationsCompany. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and as a condition precedent to the Employer Company entering into this Agreement, and as an inducement to the Employer Company to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employerreasonable.
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer Company of, and provided the Employer Company with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.
D. The In consideration for any amounts due to the Executive under Paragraph 7 of this Agreement, the Executive agrees that, if Executive ceases to be employed by Employer for any reasonduring the time of his employment with the Company and, including without limitation the non-renewal of except as otherwise set forth in this Agreement by the Company, the Executive will notParagraph 8D, for a period of two years , except on behalf six (6) months after a voluntary or involuntary termination of the EmployerExecutive’s employment, for any reason whatsoever or for no reason, the Executive shall not: (1) engage in any of the activities listed in subparagraphs D(i) and D(ii) below anywhere in the United States of America or in any other place or venue where the Employer Company or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct during such period conducts or operateoperates, its business prior to the date of the Executive’s termination of Executive's employment, or (2) engage in any of the activities listed in subparagraphs D(iii) and D(iv) below anywhere in the State of Florida or any other state that the Company does Business (as defined below) during the term of this Agreement. The Executive shall not:
(1) i. directly or indirectly, contact, solicit or accept if offered to the Executive, or direct any person, firm, corporation, association or other entity to contact contact, solicit or solicitaccept if offered to it, any of the Employer's customers Company’s customers, prospective customers, or prospective customers suppliers (as hereinafter defined) for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer Company to its customers during the term hereof;; or
(2) ii. solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who the Executive knows or should have known is a then current employee of the Employer Company (or was an employee of the Employer Company during the year preceding such solicitation), nor solicit any of the Employer's Company’s then current employees (or an individual who was employed by or engaged by the Employer Company during the year preceding such solicitation) to terminate employment or an engagement with the EmployerCompany, nor agree to hire any then current employee (or an individual who was an employee of the Employer Company during the year preceding such hire) of the Employer Company into employment with himself or any company, individual or other entity; or
(3) iii. directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the development, design, manufactureconstruction, operation or sales of: (a) residential homes or communities, (b) real estate, or (c) golf courses (the “Business”);
iv. act as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the Company’s customers, prospective customers, or suppliers with respect to or in any way with regard to any aspect of the Business. Notwithstanding the foregoing, this Paragraph 8D shall not apply to any activities listed in subparagraphs D(i) through D(iv), which the Executive engages in on behalf of the Company during the time of his employment with the Company. Subparagraphs D(i), D(iii) and D(iv) shall only apply if the Executive’s termination of employment occurs prior to the end of the Term and, thereafter, such subparagraphs shall be null and void. In the event of any breach of this subparagraph D, the Executive agrees that the six (6) month restricted period shall be tolled during the time of such breach.
E. The Executive acknowledges and agrees that the scope described above is necessary and reasonable in order to protect the Company in the conduct of its business and that, if the Executive becomes employed by another employer, he shall be required to disclose the existence of this Paragraph 8 to such employer and the Executive hereby consents to and the Company is hereby given permission to disclose the existence of this Paragraph 8 to such employer.
F. For purposes of this Paragraph 8, “customer” shall be defined as any person, firm, corporation, association, or entity that is or was doing business with the Company within the twelve (12) month period immediately preceding termination of the Executive’s employment. For purposes of this Paragraph 8, “prospective customer” shall be defined as any person, firm, corporation, association, or entity contacted or solicited by the Company or the Executive (whether directly or indirectly) or who contacted the Company or the Executive (whether directly or indirectly) within the twelve (12) month period immediately preceding termination of the Executive’s employment for the purpose of having such persons, firms, corporations, associations, or entities become a customer of the Company. For purposes of this Paragraph 8, “supplier” shall be defined as any person, firm, corporation, association, or entity who is or was doing business with the Company or who was contacted or solicited by the Company or the Executive on Company’s behalf (whether directly or indirectly) or who contacted or solicited the Company or the Executive for Company work (whether directly or indirectly) within the twelve (12) month period immediately preceding termination of the Executive’s employment.
G. The Executive agrees that both during his employment and thereafter the Executive will not, for any reason whatsoever, use for himself or disclose to any person not employed by the Company any “Confidential Information” of the Company acquired by the Executive during his relationship with the Company, both prior to and during the term of this Agreement, except as specifically provided herein. The Executive further agrees to use Confidential Information solely for the purpose of performing duties with, or for, the Company and further agrees not to use Confidential Information for his own private use or commercial purposes or in any way detrimental to the Company. The Executive agrees that “Confidential Information” includes but is not limited to: (1) any financial, engineering, business, planning, operations, services, potential services, products, potential products, technical information and/or know-how, organization charts, formulas, business plans, production, purchasing, marketing, pricing, sales, profit, personnel, customer, broker, supplier, or servicing of products then constituting ten percent (10%) other lists or more information of the annual revenues Company; (2) any papers, data, records, processes, methods, techniques, systems, models, samples, devices, equipment, compilations, invoices, customer lists, or documents of the EmployerCompany; or(3) any confidential information or trade secrets of any third party provided to the Company in confidence or subject to other use or disclosure restrictions or limitations; and (4) any other information, written, oral, or electronic, whether existing now or at some time in the future, whether pertaining to current or future developments, and whether previously accessed during the Executive’s tenure with the Company or to be accessed during his future employment with the Company, which pertains to the Company’s affairs or interests or with whom or how the Company does business. The Company acknowledges and agrees that Confidential Information does not include (i) information properly in the public domain, or (ii) information in the Executive’s possession prior to the date of his original employment with the Company (or its predecessors), except to the extent that such information is or has become a trade secret of the Company or is or otherwise has become the property of the Company. Notwithstanding anything to the contrary above, from time to time in the execution of the Executive’s duties hereunder, the Executive may disclose Confidential Information to unaffiliated third parties in connection with potential business transactions on behalf of Company (for example, an asset sale or acquisition), provided that any such third parties execute a confidentiality agreement with respect to such Confidential Information.
H. Except as otherwise permitted in subparagraph G above, in the event that the Executive intends to communicate information to any individual(s), entity or entities (other than the Company), to permit access by any individual(s), entity or entities (other than the Company), or to use information for the Executive’s own account or for the account of any individual(s), entity or entities (other than the Company) and such information would be Confidential Information hereunder but for the exceptions set out at (i) and (ii) of subparagraph G of this Agreement, the Executive shall notify the Company of such intent in writing, including a description of such information, no less than fifteen (15) days prior to such communication, access or use.
I. During and after the term of employment hereunder, the Executive will not remove from the Company’s premises any documents, records, files, notebooks, correspondence, reports, video or audio recordings, computer printouts, computer programs, computer software, price lists, microfilm, drawings or other similar documents containing Confidential Information, including copies thereof, whether prepared by him or others, except in connection with the performance of his duties, and in such cases, will promptly return such items to the Company. Upon termination of his employment with the Company, all such items including summaries or copies thereof, then in the Executive’s possession, shall be returned to the Company immediately.
J. The Executive recognizes and agrees that all ideas, inventions, patents, copyrights, copyright designs, trade secrets, trademarks, processes, discoveries, enhancements, software, source code, catalogues, prints, business applications, plans, writings, and other developments or improvements and all other intellectual property and proprietary rights and any derivative work based thereon (the “Inventions”) made, conceived, or completed by the Executive, alone or with others, during the term of his employment, whether or not during working hours, that are within the scope of the Company’s business operations or that relate to any of the Company’s work or projects (including any and all inventions based wholly or in part upon ideas conceived during the Executive’s employment with the Company), are the sole and exclusive property of the Company. The Executive further agrees that (1) he will promptly disclose all Inventions to the Company and hereby assigns to the Company all present and future rights he has or may have in those Inventions, including without limitation those relating to patent, copyright, trademark or trade secrets; and (2) all of the Inventions eligible under the copyright laws are “work made for hire.” At the request of the Company, the Executive will do all things deemed by the Company to be reasonably necessary to perfect title to the Inventions in the Company and to assist in obtaining for the Company such patents, copyrights or other protection as may be provided under law and desired by the Company, including but not limited to executing and signing any and all relevant applications, assignments or other instruments. Notwithstanding the foregoing, the Company hereby notifies the Executive that the provisions of this Paragraph 8 shall not apply to any Inventions for which no equipment, supplies, facility or trade secret information of the Company was used and which were developed entirely on the Executive’s own time, unless (1) the Invention relates (i) to the business of the Company, or (ii) to actual or demonstrably anticipated research or development of the Company, or (2) the Invention results from any work performed by the Executive for the Company.
K. The Executive acknowledges and agrees that all customer lists, supplier lists, and customer and supplier information, including, without limitation, addresses and telephone numbers, are and shall remain the exclusive property of the Company, regardless of whether such information was developed, purchased, acquired, or otherwise obtained by the
Appears in 1 contract
Protective Covenants. The Executive acknowledges and agrees that solely by virtue of his her employment by, and relationship with, the EmployerCompany, he she has acquired and will acquire "“Confidential Information," ”, as hereinafter defined, as well as special knowledge of the Employer's Company’s relationships with its customerscustomers and suppliers, and that, but for his her association with the EmployerCompany, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees agrees
(i) that the Employer Company has long term, near-permanent relationships with its customerscustomers and suppliers, and that those relationships were developed at great expense and difficulty to the Employer Company over several years of close and continuing involvement; and (ii) that the Employer's Company’s relationships and goodwill with its customers and suppliers are and will continue to be valuable, special and unique assets of the Employer; and (iii) that the Employer has the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing models, formulas, software applications and designs and other technologies and devices utilized in the management of communicationsCompany. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and as a condition precedent to the Employer Company entering into this Agreement, and as an inducement to the Employer Company to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his her free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him her hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employerreasonable.
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he she so chooses.
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer Company of, and provided the Employer Company with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.
D. The In consideration for any amounts due to the Executive under Paragraph 7 of this Agreement, the Executive agrees that, if Executive ceases to be employed by Employer for any reasonduring the time of her employment with the Company and, including without limitation the non-renewal of except as otherwise set forth in this Agreement by the Company, the Executive will notParagraph 8D, for a period of two years , except on behalf nine (9) months after a voluntary or involuntary termination of the EmployerExecutive’s employment hereunder, for any reason whatsoever or for no reason, the Executive shall not: (1) engage in any of the activities listed in subparagraphs D(i) and D(ii) below anywhere in the United States of America or in any other place or venue where the Employer Company or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct during such period conducts or operateoperates, its business prior to the date of the Executive’s termination of Executive's employment, or (2) engage in any of the activities listed in subparagraphs D(iii) and D(iv) below anywhere in the State of Florida or any other state that the Company does Business (as defined below) during the Term of this Agreement. The Executive shall not:
(1) i. directly or indirectly, contact, solicit or accept if offered to the Executive, or direct any person, firm, corporation, association or other entity to contact contact, solicit or solicitaccept if offered to it, any of the Employer's customers Company’s customers, prospective customers, or prospective customers suppliers (as hereinafter defined) for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer Company to its customers during the term hereof;; or
(2) ii. solicit or accept if offered to him, with or without solicitation, on his her own behalf or on behalf of any other person, the services of any person who the Executive knows or should have known is a then current employee of the Employer Company (or was an employee of the Employer Company during the year preceding such solicitation), nor solicit any of the Employer's Company’s then current employees (or an individual who was employed by or engaged by the Employer Company during the year preceding such solicitation) to terminate employment or an engagement with the EmployerCompany, nor agree to hire any then current employee (or an individual who was an employee of the Employer Company during the year preceding such hire) of the Employer Company into employment with himself herself or any company, individual or other entity; or
(3) iii. directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the development, design, manufactureconstruction, operation or sales of: (a) residential homes or communities, (b) real estate, or (c) golf courses (the “Business”);
iv. act as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the Company’s customers, prospective customers, or suppliers with respect to or in any way with regard to any aspect of the Business. Notwithstanding the foregoing, this Paragraph 8D shall not apply to any activities listed in subparagraphs D(i) through D(iv), which the Executive engages in on behalf of the Company during the time of her employment with the Company. Subparagraphs D(i), D(iii) and D(iv) shall only apply if the Executive’s termination of employment occurs prior to the end of the Term and, thereafter, such subparagraphs shall be null and void. In the event of any breach of this subparagraph D, the Executive agrees that the nine (9) month restricted period shall be tolled during the time of such breach.
E. The Executive acknowledges and agrees that the scope described above is necessary and reasonable in order to protect the Company in the conduct of its business and that, if the Executive becomes employed by another employer, she shall be required to disclose the existence of this Paragraph 8 to such employer and the Executive hereby consents to and the Company is hereby given permission to disclose the existence of this Paragraph 8 to such employer.
F. For purposes of this Paragraph 8, “customer” shall be defined as any person, firm, corporation, association, or entity that is or was doing business with the Company within the twelve (12) month period immediately preceding termination of the Executive’s employment. For purposes of this Paragraph 8, “prospective customer” shall be defined as any person, firm, corporation, association, or entity contacted or solicited by the Company or the Executive (whether directly or indirectly) or who contacted the Company or the Executive (whether directly or indirectly) within the twelve (12) month period immediately preceding termination of the Executive’s employment for the purpose of having such persons, firms, corporations, associations, or entities become a customer of the Company. For purposes of this Paragraph 8, “supplier” shall be defined as any person, firm, corporation, association, or entity who is or was doing business with the Company or who was contacted or solicited by the Company or the Executive on Company’s behalf (whether directly or indirectly) or who contacted or solicited the Company or the Executive for Company work (whether directly or indirectly) within the twelve (12) month period immediately preceding termination of the Executive’s employment.
G. The Executive agrees that both during her employment and thereafter the Executive will not, for any reason whatsoever, use for herself or disclose to any person not employed by the Company any “Confidential Information” of the Company acquired by the Executive during her relationship with the Company, both prior to and during the Term of this Agreement, except as specifically provided herein. The Executive further agrees to use Confidential Information solely for the purpose of performing duties with, or for, the Company and further agrees not to use Confidential Information for her own private use or commercial purposes or in any way detrimental to the Company. The Executive agrees that “Confidential Information” includes but is not limited to: (1) any financial, engineering, business, planning, operations, services, potential services, products, potential products, technical information and/or know-how, organization charts, formulas, business plans, production, purchasing, marketing, pricing, sales, profit, personnel, customer, broker, supplier, or servicing of products then constituting ten percent (10%) other lists or more information of the annual revenues Company; (2) any papers, data, records, processes, methods, techniques, systems, models, samples, devices, equipment, compilations, invoices, customer lists, or documents of the EmployerCompany; or(3) any confidential information or trade secrets of any third party provided to the Company in confidence or subject to other use or disclosure restrictions or limitations; and (4) any other information, written, oral, or electronic, whether existing now or at some time in the future, whether pertaining to current or future developments, and whether previously accessed during the Executive’s tenure with the Company or to be accessed during her future employment with the Company, which pertains to the Company’s affairs or interests or with whom or how the Company does business. The Company acknowledges and agrees that Confidential Information does not include (i) information properly in the public domain, or (ii) information in the Executive’s possession prior to the date of her original employment with the Company (or its predecessors), except to the extent that such information is or has become a trade secret of the Company or is or otherwise has become the property of the Company. Notwithstanding anything to the contrary above, from time to time in the execution of Executive’s duties hereunder, Executive may disclose Confidential Information to unaffiliated third parties in connection with potential business transactions on behalf of Company (for example, an asset sale or acquisition), provided that any such third parties execute a confidentiality agreement with respect to such Confidential Information.
H. Except as otherwise permitted in G above, in the event that the Executive intends to communicate information to any individual(s), entity or entities (other than the Company), to permit access by any individual(s), entity or entities (other than the Company), or to use information for the Executive’s own account or for the account of any individual(s), entity or entities (other than the Company) and such information would be Confidential Information hereunder but for the exceptions set out at (i) and (ii) of Paragraph G of this Agreement, the Executive shall notify the Company of such intent in writing, including a description of such information, no less than fifteen (15) days prior to such communication, access or use.
I. During and after the term of employment hereunder, the Executive will not remove from the Company’s premises any documents, records, files, notebooks, correspondence, reports, video or audio recordings, computer printouts, computer programs, computer software, price lists, microfilm, drawings or other similar documents containing Confidential Information, including copies thereof, whether prepared by her or others, except in connection with the performance of her duties, and in such cases, will promptly return such items to the Company. Upon termination of her employment with the Company, all such items including summaries or copies thereof, then in the Executive’s possession, shall be returned to the Company immediately.
J. The Executive recognizes and agrees that all ideas, inventions, patents, copyrights, copyright designs, trade secrets, trademarks, processes, discoveries, enhancements, software, source code, catalogues, prints, business applications, plans, writings, and other developments or improvements and all other intellectual property and proprietary rights and any derivative work based thereon (the “Inventions”) made, conceived, or completed by the Executive, alone or with others, during the term of her employment, whether or not during working hours, that are within the scope of the Company’s business operations or that relate to any of the Company’s work or projects (including any and all inventions based wholly or in part upon ideas conceived during the Executive’s employment with the Company), are the sole and exclusive property of the Company. The Executive further agrees that (1) she will promptly disclose all Inventions to the Company and hereby assigns to the Company all present and future rights she has or may have in those Inventions, including without limitation those relating to patent, copyright, trademark or trade secrets; and (2) all of the Inventions eligible under the copyright laws are “work made for hire.” At the request of the Company, the Executive will do all things deemed by the Company to be reasonably necessary to perfect title to the Inventions in the Company and to assist in obtaining for the Company such patents, copyrights or other protection as may be provided under law and desired by the Company, including but not limited to executing and signing any and all relevant applications, assignments or other instruments. Notwithstanding the foregoing, the Company hereby notifies the Executive that the provisions of this Paragraph 8 shall not apply to any Inventions for which no equipment, supplies, facility or trade secret information of the Company was used and which were developed entirely on the Executive’s own time, unless (1) the Invention relates (i) to the business of the Company, or (ii) to actual or demonstrably anticipated research or development of the Company, or (2) the Invention results from any work performed by the Executive for the Company.
K. The Executive acknowledges and agrees that all customer lists, supplier lists, and customer and supplier information, including, without limitation, addresses and telephone numbers, are and shall remain the exclusive property of the Company, regardless of whether such information was developed, purchased, acquired, or otherwise obtained by the Company or the Executive. The Executive agrees to furnish to the Company on demand at any time during the Term of this Agreement, and upon termination of this Agreement, her complete list of the correct names and places of business and telephone numbers of all of its customers served by him, including all copies thereof wherever located. The Executive recognizes and agrees that she has no expectation of privacy with respect to the Company’s telecommunications, networking or information processing systems (including, without limitation, stored computer files, email messages and voice messages) and that the Executive’s activity and any files or messages on or using any of those systems may be monitored at any time without notice.
L. The Company does not wish to incorporate any unlicensed or unauthorized material into its products or services or those of its subsidiaries. Therefore, the Executive agrees that she will not knowingly disclose to the Company, use in the Company’s business, or cause the Company to use, any information or material which is confidential or proprietary to any third party including, but not limited to, any former employer, competitor or client, unless the Company has a right to receive and use such information. The Executive will not incorporate into her work any material which is subject to the copyrights of any third party unless the Company has a written agreement with such third party or otherwise has the right to receive and use such information.
M. It is agreed that any breach or threatened breach of any of the Executive’s covenants contained in this Paragraph 8 will result in irreparable harm and continuing damages to the Company and its business and that the Company’s remedy at law for any such breach or threatened breach will be inadequate and, accordingly, in addition to any and all other remedies that may be available to
Appears in 1 contract
Protective Covenants. The Executive Associate acknowledges and agrees that solely by virtue of his employment by, and relationship with, the Employer, he has acquired and will acquire "Confidential Information," as hereinafter defined, as well as special knowledge of the Employer's relationships with its customerscustomers and business brokers, and that, but for his association with the Employer, the Executive would not or Associate will not have had access to said Confidential Information or knowledge of said relationships. The Executive Associate further acknowledges and agrees (i) that the Employer has long term, near-permanent relationships with its customerscustomers and business brokers, and that those relationships were developed at great expense and difficulty to the Employer over several years of close and continuing involvement; (ii) that the Employer's relationships and goodwill with its customers and business brokers are and will continue to be valuable, special and unique assets of the Employer and that the identity of its customers and business brokers is kept under tight security with the Employer and cannot be readily ascertained from publicly available materials available to the Employer's competitors; and (iii) that the Employer has the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing modelssoftware designs, formulasincluding but not limited to designs relating to health care materials management, software applications health care operating room management, health care patient cost accounting, health care capital asset management, and designs health care centralized patient scheduling; plans; processes and protocols; formulae; and concepts, ideas and other technologies and devices utilized in matters not known to the management of communicationsgeneral public. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is are hereby acknowledged, and as a condition precedent to the Employer entering into this Agreement, and as an inducement to the Employer to do so, the Executive Associate hereby represents, warrants, and covenants as follows:
A. The Executive Associate has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employer.;
B. The Executive Associate has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.;
C. The execution and delivery of this Agreement by the Executive Associate does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive Associate may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.;
D. The Executive Associate agrees that, if Executive ceases to be employed by Employer for any reason, including without limitation during the non-renewal time of this Agreement by the Company, the Executive will not, his employment and for a period of two years one (1) year after termination of the Associate's employment hereunder for any reason whatsoever or for no reason, whether voluntary or involuntary, the Associate will not, except on behalf of the Employer, anywhere in the United States of America or in any other place or venue where the Employer or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct or operate, its business prior to the date of the termination of Executive's employment:
(1) directly or indirectly, contact, solicit or direct any person, firm, corporation, association or other entity Corporation to contact or solicit, solicit any of the Employer's customers customers, prospective customers, or prospective customers business brokers (as hereinafter defined) for the purpose of providing selling or attempting to sell, any products and/or services that are the same as or similar to the products and services provided by the Employer to its customers during the term hereof;. In addition, the Associate will not disclose the identity of any such business brokers, customers, or prospective customers, or any part thereof, to any person, firm, corporation, association, or other entity for any reason or purpose whatsoever, and
(2) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit any of the Employer's then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself or any company, individual or other entity; or
(3) directly or indirectly, whether as an investor (excluding investments representing less than one five percent (15%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the design, manufacture, marketing, or servicing of products then constituting ten percent (10%) or more of the annual revenues sales of the Employer; orand
(3) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is an associate of the Employer, nor solicit any of the Employer's associates to terminate employment with the Employer; and
(4) act as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the Employer's business brokers, customers, or prospective customers (as hereinafter defined), with respect to or in any way with regard to any aspect of the Employer's business and/or any other business activities in which Employer engages during the term hereof.
E. The Associate acknowledges and agrees that the scope described above is necessary and reasonable in order to protect the Employer in the conduct of its business and that, if the Associate becomes employed by another employer, he shall be required to disclose the existence of this Paragraph 8 to such employer.
F. For purposes of this Paragraph 8, "customer" shall be defined as any person, firm, or entity that purchased any type of product and/or service from Employer or is or was doing business with the Employer or the Associate within the twelve (12) month period immediately preceding termination of the Associate's employment. For purposes of this Paragraph 8, "prospective customer" shall be defined as any person, firm, or entity contracted or solicited by the Employer or the Associate (whether directly or indirectly) or who contacted the Employer or the Associate (whether directly or indirectly) within the twelve (12) month period immediately preceding termination of the Associate's employment for the purpose of having such persons, firms, or entities become a customer of the Employer. For purposes of this Paragraph 8, "business broker" shall be defined as any person, firm, or entity who is or was doing business with the Employer or the Associate who was contacted or solicited by the Employer or the Associate (whether directly or indirectly) or who contacted or solicited the Employer or the Associate (whether directly or indirectly) within the twelve (12) month period immediately preceding termination of the Associate's employment.
G. The Associate agrees that both during his employment and thereafter the Associate will not, for any reason whatsoever, use for himself or disclose to any person not employed by the Employer any "Confidential Information" of the Employer acquired by the Associate during his relationship with the Employer, both prior to and during the term of this Agreement. The Associate further agrees to use Confidential Information solely for the purpose of performing duties with the Employer and further agrees not to use Confidential Information for his own private use or commercial purposes or in any way detrimental to the Employer. The Associate agrees that "Confidential Information" includes but is not limited to: (a) any financial, business, planning, software, operations, services, potential services, products, potential products, designs, technical information and/or know-how, formulas, production, purchasing, marketing, sales, personnel, customer, broker, supplier, or other information of the Employer; (b) any papers, data, records, processes, methods, techniques, systems, models, samples, devices, equipment, compilations, invoices, customer lists, or documents of the Employer; (c) any confidential information or trade secrets of any third party provided to the Employer in confidence or subject to other use or disclosure restrictions or limitations; and (d) any other information, written, oral, or electronic, whether existing now or at some time in the future, whether pertaining to current or future developments, and whether previously accessed during the Associate's tenure with the Employer or to be accessed during his future employment with the Employer, which pertains to the Employer's affairs or interests or with whom or how the Employer does business. The Employer acknowledges and agrees that Confidential Information does not include (i) information properly in the public domain, or (ii) information in the Associate's possession prior to the date of his original employment with the Employer.
Appears in 1 contract
Protective Covenants. The Executive acknowledges and agrees that solely by virtue of his employment by, and relationship with, the EmployerCompany, he has acquired and will acquire "“Confidential Information," ”, as hereinafter defined, as well as special knowledge of the Employer's Company’s relationships with its customerscustomers and suppliers, and that, but for his association with the EmployerCompany, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer Company has long term, near-permanent relationships with its customerscustomers and suppliers, and that those relationships were developed at great expense and difficulty to the Employer Company over several years of close and continuing involvement; and (ii) that the Employer's Company’s relationships and goodwill with its customers and suppliers are and will continue to be valuable, special and unique assets of the Employer; and (iii) that the Employer has the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing models, formulas, software applications and designs and other technologies and devices utilized in the management of communicationsCompany. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and as a condition precedent to the Employer Company entering into this Agreement, and as an inducement to the Employer Company to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employerreasonable.
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer Company of, and provided the Employer Company with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.
D. The In consideration for any amounts due to the Executive under Paragraph 7 of this Agreement, the Executive agrees that, if Executive ceases to be employed by Employer during the time of his employment with the Company and for any reason, including without limitation the non-renewal restricted period following the termination of this Agreement by the Companyhis employment as set forth below, the Executive will shall not, for a period of two years , except on behalf : (1) engage in any of the Employer, activities listed in subparagraphs D(i) and D(ii) below anywhere in the United States of America or in any other place or venue where the Employer Company or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct during such period conducts or operateoperates, its business prior to the date of the Executive’s termination of employment, or (2) engage in any of the activities listed in subparagraphs D(iii) and D(iv) below anywhere in the State of Florida or any other state that the Company does Business (as defined below) during the Term of this Agreement. If the Executive's ’s employment is terminated by the Company for cause or in connection with a Change in Control or following the expiration of the Term, the Executive shall not engage in the activities listed in subparagraphs D(i) and D(ii) for a period of twelve (12) months following termination of employment, and shall not engage in the activities listed in subparagraphs D(iii) and D(iv) for a period of six (6) months following termination. If the Executive terminates his employment without Good Reason, the Executive shall not engage in the activities listed in subparagraphs D(i) through D(iv) for a period of twelve (12) months following termination of employment. If the Executive’s employment is terminated by the Company without cause or by the Executive for Good Reason, the Executive shall not engaged in the activities listed in subparagraphs D(i) through D(iv) for a period of six (6) months following termination (and for an additional six (6) months thereafter, if the Executive has elected any payments during the Additional Severance Period pursuant to paragraph 7B(ii)). The Executive shall not:
(1) i. directly or indirectly, contact, solicit or accept if offered to the Executive, or direct any person, firm, corporation, association or other entity to contact contact, solicit or solicitaccept if offered to it, any of the Employer's customers Company’s customers, prospective customers, or prospective customers suppliers (as hereinafter defined) for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer Company to its customers during the term hereof;; or
(2) ii. solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who the Executive knows or should have known is a then current employee of the Employer Company (or was an employee of the Employer Company during the year preceding such solicitation), nor solicit any of the Employer's Company’s then current employees (or an individual who was employed by or engaged by the Employer Company during the year preceding such solicitation) to terminate employment or an engagement with the EmployerCompany, nor agree to hire any then current employee (or an individual who was an employee of the Employer Company during the year preceding such hire) of the Employer Company into employment with himself or any company, individual or other entity; or
(3) iii. directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the development, design, manufactureconstruction, operation or sales of: (a) residential homes or communities, (b) real estate, or (c) golf courses (the “Business”);
iv. act as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the Company’s customers, prospective customers, or suppliers with respect to or in any way with regard to any aspect of the Business. Notwithstanding the foregoing, this Paragraph 8D shall not apply while the Executive is employed to any activities listed in subparagraphs D(i) through D(iv), which the Executive engages in on behalf of the Company during the time of his employment with the Company. In the event of any breach of this subparagraph D, the Executive agrees that the restricted period shall be tolled during the time of such breach.
E. The Executive acknowledges and agrees that the scope described above is necessary and reasonable in order to protect the Company in the conduct of its business and that, if the Executive becomes employed by another employer, he shall be required to disclose the existence of this Paragraph 8 to such employer and the Executive hereby consents to and the Company is hereby given permission to disclose the existence of this Paragraph 8 to such employer.
F. For purposes of this Paragraph 8, “customer” shall be defined as any person, firm, corporation, association, or entity that is or was doing business with the Company within the twelve (12) month period immediately preceding termination of the Executive’s employment. For purposes of this Paragraph 8, “prospective customer” shall be defined as any person, firm, corporation, association, or entity contacted or solicited by the Company or the Executive (whether directly or indirectly) or who contacted the Company or the Executive (whether directly or indirectly) within the twelve (12) month period immediately preceding termination of the Executive’s employment for the purpose of having such persons, firms, corporations, associations, or entities become a customer of the Company. For purposes of this Paragraph 8, “supplier” shall be defined as any person, firm, corporation, association, or entity who is or was doing business with the Company or who was contacted or solicited by the Company or the Executive on Company’s behalf (whether directly or indirectly) or who contacted or solicited the Company or the Executive for Company work (whether directly or indirectly) within the twelve (12) month period immediately preceding termination of the Executive’s employment.
G. The Executive agrees that both during his employment and thereafter the Executive will not, for any reason whatsoever, use for himself or disclose to any person not employed by the Company any “Confidential Information” of the Company acquired by the Executive during his relationship with the Company, both prior to and during the Term of this Agreement, except as specifically provided herein. The Executive further agrees to use Confidential Information solely for the purpose of performing duties with, or for, the Company and further agrees not to use Confidential Information for his own private use or commercial purposes or in any way detrimental to the Company. The Executive agrees that “Confidential Information” includes but is not limited to: (1) any financial, engineering, business, planning, operations, services, potential services, products, potential products, technical information and/or know-how, organization charts, formulas, business plans, production, purchasing, marketing, pricing, sales, profit, personnel, customer, broker, supplier, or servicing of products then constituting ten percent (10%) other lists or more information of the annual revenues Company; (2) any papers, data, records, processes, methods, techniques, systems, models, samples, devices, equipment, compilations, invoices, customer lists, or documents of the EmployerCompany; or(3) any confidential information or trade secrets of any third party provided to the Company in confidence or subject to other use or disclosure restrictions or limitations; and (4) any other information, written, oral, or electronic, whether existing now or at some time in the future, whether pertaining to current or future developments, and whether previously accessed during the Executive’s tenure with the Company or to be accessed during his future employment with the Company, which pertains to the Company’s affairs or interests or with whom or how the Company does business. The Company acknowledges and agrees that Confidential Information does not include (i) information properly in the public domain, or (ii) information in the Executive’s possession prior to the date of his original employment with the Company (or its predecessors), except to the extent that such information is or has become a trade secret of the Company or is or otherwise has become the property of the Company. Notwithstanding anything to the contrary above, from time to time in the execution of Executive’s duties hereunder, Executive may disclose Confidential Information to unaffiliated third parties in connection with potential business transactions on behalf of Company (for example, an asset sale or acquisition), provided that any such third parties execute a confidentiality agreement with respect to such Confidential Information or otherwise have an obligation of confidentiality with respect to such information.
H. Except as otherwise permitted in G above, in the event that the Executive communicates information to any individual(s), entity or entities (other than the Company), to permit access by any individual(s), entity or entities (other than the Company), or to use information for the Executive’s own account or for the account of any individual(s), entity or entities (other than the Company) and such information would be Confidential Information hereunder but for the exceptions set out at (i) and (ii) of Paragraph G of this Agreement, the Executive shall have the burden of proof of establishing the facts of such exception if the Company objects to such communication.
I. During and after the term of employment hereunder, the Executive will not remove from the Company’s premises any documents, records, files, notebooks, correspondence, reports, video or audio recordings, computer printouts, computer programs, computer software, price lists, microfilm, drawings or other similar documents containing Confidential Information, including copies thereof, whether prepared by him or others, except in connection with the performance of his duties or in furtherance of any rights he may have under this Agreement or any other agreement with the Company, and in such cases, will promptly return such items to the Company. Upon termination of his employment with the Company, all such items including summaries or copies thereof, then in the Executive’s possession, shall be returned to the Company immediately.
J. The Executive recognizes and agrees that all ideas, inventions, patents, copyrights, copyright designs, trade secrets, trademarks, processes, discoveries, enhancements, software, source code, catalogues, prints, business applications, plans, writings, and other developments or improvements and all other intellectual property and proprietary rights and any derivative work based thereon (the “Inventions”) made, conceived, or completed by the Executive, alone or with others, during the term of his employment, whether or not during working hours, that are within the scope of the Company’s business operations or that relate to any of the Company’s work or projects (including any and all inventions based wholly or in part upon ideas conceived during the Executive’s employment with the Company), are the sole and exclusive property of the Company. The Executive further agrees that (1) he will promptly disclose all Inventions to the Company and hereby assigns to the Company all present and future rights he has or may have in those Inventions, including without limitation those relating to patent, copyright, trademark or trade secrets; and (2) all of the Inventions eligible under the copyright laws are “work made for hire.” At the request of the Company, the Executive will do all things deemed by the Company to be reasonably necessary to perfect title to the Inventions in the Company and to assist in obtaining for the Company such patents, copyrights or other protection as may be provided under law and desired by the Company, including but not limited to executing and signing any and all relevant applications, assignments or other instruments. Notwithstanding the foregoing, the Company hereby notifies the Executive that the provisions of this Paragraph 8 shall not apply to any Inventions for which no equipment, supplies, facility or trade secret information of the Company was used and which were developed entirely on the Executive’s own time, unless (1) the Invention relates (i) to the business of the Company, or (ii) to actual or demonstrably anticipated research or development of the Company, or (2) the Invention results from any work performed by the Executive for the Company.
K. The Executive acknowledges and agrees that all customer lists, supplier lists, and customer and supplier information, including, without limitation, addresses and telephone numbers, are and shall remain the exclusive property of the Company, regardless of whether such information was developed, purchased, acquired, or otherwise obtained by the Company or the Executive. The Executive agrees to furnish to the Company on demand at any time during the Term of this Agreement, and upon termination of this Agreement, his complete list of the correct names and places of business and telephone numbers of all of its customers served by him, including all copies thereof wherever located. The Executive recognizes and agrees that he has no expectation of privacy with respect to the Company’s telecommunications, networking or information processing systems (including, without limitation, stored computer files, email messages and voice messages) and that the Executive’s activity and any files or messages on or using any of those systems may be monitored at any time without notice.
L. The Company does not wish to incorporate any unlicensed or unauthorized material into its products or services or those of its subsidiaries. Therefore, the Executive agrees that he will not knowingly disclose to the Company, use in th
Appears in 1 contract
Protective Covenants. The Executive acknowledges and agrees that solely by virtue of his employment by, and relationship with, the Employer, he has acquired and will acquire "Confidential Information," ", as hereinafter defined, as well as special knowledge of the Employer's relationships with its customerscustomers and business brokers, and that, but for his association with the Employer, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer has long term, near-permanent relationships with its customerscustomers and business brokers, and that those relationships were developed at great expense and difficulty to the Employer over several years of close and continuing involvement; (ii) that the Employer's relationships and goodwill with its customers and business brokers are and will continue to be valuable, special and unique assets of the Employer and that the identity of its customers and business brokers is kept under tight security with the Employer and cannot be readily ascertained from publicly available materials or from materials available to the Employer's competitors; and (iii) that the Employer has the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing modelsmarketing strategies and research information and benchmarks; and plans, formulasprocesses, software applications customer networks and designs and other technologies and devices utilized in the management of communicationsprotocols. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is are hereby acknowledged, and as a condition precedent to the Employer entering into this Agreement, and as an inducement to the Employer to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employer.;
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.
; C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.
; D. The Executive agrees that, if Executive ceases to be employed by Employer during the time of his employment and for a period of one (1) year after the termination of the Executive's employment hereunder for any reason whatsoever or for no reason, including without limitation the non-renewal of this Agreement by the Companywhether voluntary or involuntary, the Executive will not, for a period of two years , except on behalf of the Employer, anywhere in the United States of America or in any other place or venue where the Employer or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct or operate, its business prior to the date of the Executive's termination of Executive's employment:
: (1) directly or indirectly, contact, solicit or direct any person, firm, corporation, association or other entity corporation to contact or solicit, any of the Employer's customers customers, prospective customers, or prospective customers business brokers (as hereinafter defined) for the purpose of providing selling or attempting to sell, any products and/or services that are the same as or similar to the products and services provided by the Employer to its customers during the term hereof;
. In addition, the Executive will not disclose the identity of any such business brokers, customers, or prospective customers, or any part thereof, to any person, firm, corporation, association, or other entity for any reason or purpose whatsoever; and (2) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit any of the Employer's then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself or any company, individual or other entity; or
(3) directly or indirectly, whether as an investor (excluding investments representing less than one five percent (15%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the design, manufacture, marketing, or servicing of products then constituting ten percent (10%) or more of the annual revenues sales of the Employer; orand (3) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is an employee of the Employer, nor solicit any of the Employer's employees to terminate employment with the Employer, nor agree to hire any employee of the Employer into employment with himself or any company, individual or other entity; and (4) act as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the Employer's business brokers, customers, or prospective customers (as hereinafter
Appears in 1 contract
Sources: Employment Agreement (System Software Associates Inc)
Protective Covenants. The Executive acknowledges and agrees that solely by virtue of his employment by, and relationship with, the EmployerCompany, he has acquired and will acquire "“Confidential Information," ”, as hereinafter defined, as well as special knowledge of the Employer's Company’s relationships with its customerscustomers and suppliers, and that, but for his association with the EmployerCompany, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer Company has long term, near-permanent relationships with its customerscustomers and suppliers, and that those relationships were developed at great expense and difficulty to the Employer Company over several years of close and continuing involvement; and (ii) that the Employer's Company’s relationships and goodwill with its customers and suppliers are and will continue to be valuable, special and unique assets of the Employer; and (iii) that the Employer has the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing models, formulas, software applications and designs and other technologies and devices utilized in the management of communicationsCompany. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and as a condition precedent to the Employer Company entering into this Agreement, and as an inducement to the Employer Company to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employerreasonable.
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer Company of, and provided the Employer Company with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.
D. The In consideration for any amounts due to the Executive under Paragraph 7 of this Agreement, the Executive agrees that, if Executive ceases to be employed by Employer for any reasonduring the time of his employment with the Company and, including without limitation the non-renewal of except as otherwise set forth in this Agreement by the Company, the Executive will notParagraph 8D, for a period of two years , except on behalf six (6) months after a voluntary or involuntary termination of the EmployerExecutive’s employment hereunder, for any reason whatsoever or for no reason, the Executive shall not: (1) engage in any of the activities listed in subparagraphs D(i) and D(ii) below anywhere in the United States of America or in any other place or venue where the Employer Company or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct during such period conducts or operateoperates, its business prior to the date of the Executive’s termination of Executive's employment, or (2) engage in any of the activities listed in subparagraphs D(iii) and D(iv) below anywhere in the State of Florida or any other state that the Company does Business (as defined below) during the Term of this Agreement. The Executive shall not:
(1) i. directly or indirectly, contact, solicit or accept if offered to the Executive, or direct any person, firm, corporation, association or other entity to contact contact, solicit or solicitaccept if offered to it, any of the Employer's customers Company’s customers, prospective customers, or prospective customers suppliers (as hereinafter defined) for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer Company to its customers during the term hereof;; or
(2) ii. solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who the Executive knows or should have known is a then current employee of the Employer Company (or was an employee of the Employer Company during the year preceding such solicitation), nor solicit any of the Employer's Company’s then current employees (or an individual who was employed by or engaged by the Employer Company during the year preceding such solicitation) to terminate employment or an engagement with the EmployerCompany, nor agree to hire any then current employee (or an individual who was an employee of the Employer Company during the year preceding such hire) of the Employer Company into employment with himself or any company, individual or other entity; or
(3) iii. directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the development, design, manufactureconstruction, marketing, operation or servicing of products then constituting ten percent sales of: (10%a) residential homes or more of the annual revenues of the Employer; orcommunities or (b)
Appears in 1 contract
Protective Covenants. The Executive acknowledges and agrees that solely by virtue of his employment by, and relationship with, the Employer, he has acquired and will acquire "“Confidential Information," ”, as hereinafter defined, as well as special knowledge of the Employer's ’s relationships with its customers, and that, but for his association with the Employer, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer has long term, near-permanent relationships with its customers, and that those relationships were developed at great expense and difficulty to the Employer over several years of close and continuing involvement; (ii) that the Employer's ’s relationships and goodwill with its customers are and will continue to be valuable, special and unique assets of the Employer; and (iii) that the Employer has the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing models, formulas, software applications and designs and other technologies and devices utilized in the management of communications. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and as a condition precedent to the Employer entering into this Agreement, and as an inducement to the Employer to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employer.
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.
D. The Executive agrees that, if Executive ceases to be employed by during the time of his employment with the Employer and for a period of eighteen (18) months after the termination of the Executive’s employment hereunder for any reason whatsoever or for no reason, including without limitation the non-renewal of this Agreement by the Companywhether voluntary or involuntary, or, if longer, during any applicable Severance Period, the Executive will not, for a period of two years , except on behalf of the Employer, anywhere in the United States of America or in any other place or venue where the Employer or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct or operate, its business prior to the date of the Executive’s termination of Executive's employment:
(1) directly or indirectly, contact, solicit or accept if offered to the Executive, or direct any person, firm, corporation, association or other entity to contact contact, solicit or solicitaccept if offered to it, any of the Employer's ’s customers or prospective customers (as hereinafter defined) for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer to its customers during the term hereof;; or
(2) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit any of the Employer's ’s then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself or any company, individual or other entity; or
(3) directly or indirectly, whether as an investor (excluding investments representing less than one five percent (15%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the designretail sale of music, manufacturevideo or related products (the “Business”); or
(4) act as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the Employer’s customers or prospective customers, with respect to or in any way with regard to any aspect of the Employer’s Business and/or any other business activities in which the Employer engages during the term hereof. In the event of any breach of this subparagraph D, the Executive agrees that the restricted period shall be tolled during the time of such breach.
E. The Executive acknowledges and agrees that the scope described above is necessary and reasonable in order to protect the Employer in the conduct of its business and that, if the Executive becomes employed by another employer, he shall be required to disclose the existence of this Paragraph 7 to such employer and the Executive hereby consents to and the Employer is hereby given permission to disclose the existence of this Paragraph 7 to such employer.
F. For purposes of this Paragraph 7, “customer” shall be defined as any person, firm, corporation, association, or entity that purchased any type of product and/or service from the Employer or is or was doing business with the Employer or the Executive within the twelve (12) month period immediately preceding termination of the Executive’s employment. For purposes of this Paragraph 7, “prospective customer” shall be defined as any person, firm, corporation, association, or entity contacted or solicited by the Employer or the Executive (whether directly or indirectly) or who contacted the Employer or the Executive (whether directly or indirectly) within the twelve (12) month period immediately preceding termination of the Executive’s employment for the purpose of having such persons, firms, corporations, associations, or entities become a customer of the Employer.
G. The Executive agrees that both during his employment and thereafter the Executive will not, for any reason whatsoever, use for himself or disclose to any person not employed by the Employer any “Confidential Information” of the Employer acquired by the Executive during his relationship with the Employer, both prior to and during the term of his employment. The Executive further agrees to use Confidential Information solely for the purpose of performing duties with, or for, the Employer and further agrees not to use Confidential Information for his own private use or commercial purposes or in any way detrimental to the Employer. The Executive agrees that “Confidential Information” includes but is not limited to: (1) any financial, engineering, business, planning, operations, services, potential services, products, potential products, technical information and/or know-how, organization charts, formulas, business plans, production, purchasing, marketing, pricing, sales, profit, personnel, customer, broker, supplier, or servicing of products then constituting ten percent (10%) other lists or more of the annual revenues information of the Employer; or(2) any papers, data, records, processes, methods, techniques, systems, models, samples, devices, equipment, compilations, invoices, customer lists, or documents of the Employer; (3) any confidential information or trade secrets of any third party provided to the Employer in confidence or subject to other use or disclosure restrictions or limitations; and (4) any other information, written, oral, or electronic, whether existing now or at some time in the future, whether pertaining to current or future developments, and whether previously accessed during the Executive’s tenure with the Employer or to be accessed during his future employment with the Employer, which pertains to the Employer’s Business. The Employer acknowledges and agrees that Confidential Information does not include (i) information properly in the public domain, or (ii) information in the Executive’s possession prior to the date of his original employment with the Employer, except to the extent that such information is or has become a trade secret of the Employer or is or otherwise has become the property of the Employer.
H. In the event that the Executive intends to communicate information to any individual(s), entity or entities (other than the Employer), to permit access by any individual(s), entity or entities (other than the Employer), or to use information for the Executive’s own account or for the account of any individual(s), entity or entities (other than the Employer) and such information would have constituted Confidential Information hereunder but for the exceptions set out at (i) and (ii) of Paragraph G of this Agreement, the Executive shall notify the Employer of such intent in writing, including a description of such information, no less than fifteen (15) days prior to such communication, access or use.
I. During and after the term of employment hereunder, the Executive will not remove from the Employer’s premises any documents, records, files, notebooks, correspondence, reports, video or audio recordings, computer printouts, computer programs, computer software, price lists, microfilm, drawings or other similar documents containing Confidential Information, including copies thereof, whether prepared by him or others, except as his duty shall require, and in such cases, will promptly return such items to the Employer. Upon termination of his employment with the Employer, all such items including summaries or copies thereof, then in the Executive’s possession, shall be returned to the Employer immediately.
J. The Executive recognizes and agrees that all ideas, inventions, patents, copyrights, copyright designs, trade secrets, trademarks, processes, discoveries, enhancements, software, source code, catalogues, prints, business applications, plans, writings, and other developments or improvements and all other intellectual property and proprietary rights and any derivative work based thereon (the “Inventions”) made, conceived, or completed by the Executive, alone or with others, during the term of his employment, whether or not during working hours, that are within the scope of the Employer’s business operations or that relate to any of the Employer’s work or projects (including any and all inventions based wholly or in part upon ideas conceived during the Executive’s employment with the Employer), are the sole and exclusive property of the Employer. The Executive further agrees that (1) he will promptly disclose all Inventions to the Employer and hereby assigns to the Employer all present and future rights he has or may have in those Inventions, including without limitation those relating to patent, copyright, trademark or trade secrets; and (2) all of the Inventions eligible under the copyright laws are “work made for hire.” At the request of the Employer, the Executive will do all things deemed by the Employer to be reasonably necessary to perfect title to the Inventions in the Employer and to assist in obtaining for the Employer such patents, copyrights or other protection as may be provided under law and desired by the Employer, including but not limited to executing and signing any and all relevant applications, assignments or other instruments. The Executive hereby irrevocably designates and appoints the Employer and its duly authorized officers and agents as the Executive’s agents and attorneys-in-fact to act for and on the Executive’s behalf and instead of the Executive, to execute and file any documents and to do all other lawfully permitted acts to further the above purposes with the same legal force and effect as if executed by the Executive, and the Executive acknowledges that this designation and appointment constitutes an irrevocable power of attorney and is coupled with an interest. Notwithstanding the foregoing, the Employer hereby notifies the Executive that the provisions of this Paragraph 7 shall not apply to any Inventions for which no equipment, supplies, facility or trade secret information of the Employer was used and which were developed entirely on the Executive’s own time, unless (1) the Invention relates (i) to the business of the Employer, or (ii) to actual or demonstrably anticipated research or development of the Employer, or (2) the Invention results from any work performed by the Executive for the Employer.
K. The Executive recognizes and agrees that he has no expectation of privacy with respect to the Employer’s telecommunications, networking or information processing systems (including, without limitation, stored computer files, email messages and voice messages) and that the Executive’s activity and any files or messages on or using any of those systems may be monitored at any time without notice.
L. The Executive acknowledges that he may become aware of “material” nonpublic information relating to customers whose stock is publicly traded. The Executive acknowledges that he is prohibited by law as well as by Employer policy from trading in the shares of such customers while in possession of such information or directly or indirectly disclosing such information to any other persons so that they may trade in these shares. For purposes of this Paragraph L, “material” information may include any information, positive or negative, which might be of significance to an investor in determining whether to purchase, sell or hold the stock of publicly traded customers. Information may be significant for this purpose even if it would not alone determine the investor’s decision. Examples include a potential business acquisition, internal financial information that departs in any way from what the market would expect, the acquisition or loss of a major contract, or an important financing transaction.
M. The Employer does not wish to incorporate any unlicensed or unauthorized material into its products or services or those of its subsidiaries. Therefore, the Executive agrees that he will not knowingly disclose to the Employer, use in the Employer’s business, or cause the Employer to use, any information or material which is confidential or proprietary to any third party including, but not limited to, any former employer, competitor or client, unless the Employer has a right to receive and use such information. The Executive will not incorporate into his work any material which is subject to the copyrights of any third party unless the Employer has a written agreement with such third party or otherwise has the right to receive and use such information.
N. It is agreed that any breach or anticipated or threatened breach of any of the Executive’s covenants contained in this Paragraph 7 will result in irreparable harm and continuing damages to the Employer and its business and that the Employer’s remedy at law for any such breach or anticipated or threatened breach will be inadequate and, accordingly, in addition to any and all other remedies that may be available to the Employer at law or in equity in such event, any court of competent jurisdiction may issue a decree of specific performance or issue a temporary and permanent injunction, without the necessity of the Employer posting bond or furnishing other security and without proving special damages or irreparable injury, enjoining and restricting the breach, or threatened breach, of any such covenant, including, but not limited to, any injunction restraining the Executive from disclosing, in whole or part, any Confidential Information. The Executive further agrees to pay all of the Employer’s costs and expenses, including reasonable attorneys’ fees a
Appears in 1 contract
Sources: Employment Agreement (Trans World Entertainment Corp)
Protective Covenants. For purposes of this Paragraph 8, the Employer shall be deemed to include the Employer and each of its direct and indirect subsidiaries. The Executive acknowledges and agrees that solely by virtue of his employment by, and relationship with, the Employer, he has acquired and will continue to acquire "Confidential Information," ", as hereinafter defined, as well as special knowledge of the Employer's relationships with its customerscustomers and suppliers, and that, but for his association with the Employer, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer has long term, near-permanent relationships with its customerscustomers and suppliers, and that those relationships were developed at great expense and difficulty to the Employer over several years of close and continuing involvement; (ii) that the Employer's relationships and goodwill with its customers and suppliers are and will continue to be valuable, special and unique assets of the Employer; and (iii) that the Employer has the following other protectable interests known, or which will become known, to the Executive by virtue of his employment hereunder and that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing models, formulas, software applications and designs and other technologies and devices utilized in the management of communications. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and as a condition precedent to the Employer entering into this Agreement, and as an inducement to the Employer to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employer.
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.
D. The Executive agrees that, if Executive ceases to be employed by during the time of his employment with the Employer and for a period of one (1) year after the termination of the Executive's employment hereunder for any reason whatsoever or for no reason, including without limitation the non-renewal of this Agreement by the Companywhether voluntary or involuntary, the Executive will not, for a period of two years , except on behalf of the Employer, anywhere in the United States of America or in any other place or venue where the Employer or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct or operate, its business prior to the date of the Executive’s termination of Executive's employment:
(1) directly or indirectly, contact, solicit or accept if offered to the Executive, or direct any person, firm, corporation, association or other entity to contact contact, solicit or solicitaccept if offered to it, any of the Employer's customers customers, prospective customers, or prospective customers suppliers (as hereinafter defined) for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer to its customers during the term hereof;; or
(2) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit any of the Employer's then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself or any company, individual or other entity; or
(3) directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the design, manufacture, marketing, or servicing of products then constituting ten percent (10%) or more of the annual revenues of the Employer; or
(4) act as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the Employer's customers, prospective customers, or suppliers (as hereinafter defined), with respect to or in any way with regard to any aspect of the Employer's business and/or any other business activities in which the Employer engages during the term hereof. In the event of any breach of this subparagraph D, the Executive agrees that the one (1) year restricted period shall be tolled during the time of such breach.
E. The Executive acknowledges and agrees that the scope described above is necessary and reasonable in order to protect the Employer in the conduct of its business and that, if the Executive becomes employed by another employer, he shall be required to disclose the existence of this Paragraph 8 to such employer and the Executive hereby consents to and the Employer is hereby given permission to disclose the existence of this Paragraph 8 to such employer.
F. For purposes of this Paragraph 8, "customer" shall be defined as any person, firm, corporation, association, or entity that purchased any type of product and/or service from the Employer or is or was doing business with the Employer or the Executive within the twelve (12) month period immediately preceding termination of the Executive's employment. For purposes of this Paragraph 8, "prospective customer" shall be defined as any person, firm, corporation, association, or entity contacted or solicited by the Employer or the Executive (whether directly or indirectly) or who contacted the Employer or the Executive (whether directly or indirectly) within the twelve (12) month period immediately preceding termination of the Executive's employment for the purpose of having such persons, firms, corporations, associations, or entities become a customer of the Employer. For purposes of this Paragraph 8, "supplier" shall be defined as any person, firm, corporation, association, or entity who is or was doing business with the Employer or the Executive or who was contacted or solicited by the Employer or the Executive (whether directly or indirectly) or who contacted or solicited the Employer or the Executive (whether directly or indirectly) within the twelve (12) month period immediately preceding termination of the Executive's employment.
G. The Executive agrees that both during his employment and thereafter the Executive will not, for any reason whatsoever, use for himself or disclose to any person not employed by the Employer any "Confidential Information" of the Employer acquired by the Executive during his relationship with the Employer, both prior to and during the term of his employment under this Agreement. The Executive further agrees to use Confidential Information solely for the purpose of performing duties with, or for, the Employer and further agrees not to use Confidential Information for his own private use or commercial purposes or in any way detrimental to the Employer. The Executive agrees that "Confidential Information" includes but is not limited to: (1) any financial, engineering, business, planning, operations, services, potential services, products, potential products, technical information and/or know-how, organization charts, formulas, business plans, production, purchasing, marketing, pricing, sales, profit, personnel, customer, broker, supplier, or other lists or information of the Employer; (2) any papers, data, records, processes, methods, techniques, systems, models, samples, devices, equipment, compilations, invoices, customer lists, or documents of the Employer; (3) any confidential information or trade secrets of any third party provided to the Employer in confidence or subject to other use or disclosure restrictions or limitations; and (4) any other information, written, oral, or electronic, whether existing now or at some time in the future, whether pertaining to current or future developments, and whether previously accessed during the Executive's tenure with the Employer or to be accessed during his future employment with the Employer, which pertains to the Employer's affairs or interests or with whom or how the Employer does business. The Employer acknowledges and agrees that Confidential Information does not include (i) information properly in the public domain, or (ii) information in the Executive's possession prior to the date of his original employment with the Employer, except to the extent that such information is or has become a trade secret of the Employer or is or otherwise has become the property of the Employer.
H. In the event that the Executive intends to communicate information to any individual(s), entity or entities (other than the Employer), to permit access by any individual(s), entity or entities (other than the Employer), or to use information for the Executive’s own account or for the account of any individual(s), entity or entities (other than the Employer) and such information would have constituted Confidential Information hereunder but for the exceptions set out at (i) and (ii) of Paragraph 8G, the Executive shall notify the Employer of such intent in writing, including a description of such information, no less than fifteen (15) days prior to such communication, access or use.
I. During and after the term of employment hereunder, the Executive will not remove from the Employer's premises any documents, records, files, notebooks, correspondence, reports, video or audio recordings, computer printouts, computer programs, computer software, price lists, microfilm, drawings or other similar documents containing Confidential Information, including copies thereof, whether prepared by him or others, except as his duty shall require, and in such cases, will promptly return such items to the Employer. Upon termination of his employment with the Employer, all such items including summaries or copies thereof, then in the Executive's possession, shall be returned to the Employer immediately.
J. The Executive recognizes and agrees that all ideas, inventions, patents, copyrights, copyright designs, trade secrets, trademarks, processes, discoveries, enhancements, software, source code, catalogues, prints, business applications, plans, writings, and other developments or improvements and all other intellectual property and proprietary rights and any derivative work based thereon (the "Inventions") made, conceived, or completed by the Executive, alone or with others, during the term of his employment, whether or not during working hours, that are within the scope of the Employer's business operations or that relate to any of the Employer's work or projects (including any and all inventions based wholly or in part upon ideas conceived during the Executive’s employment with the Employer), are the sole and exclusive property of the Employer. The Executive further agrees that (1) he will promptly disclose all Inventions to the Employer and hereby assigns to the Employer all present and future rights he has or may have in those Inventions, including without limitation those relating to patent, copyright, trademark or trade secrets; and (2) all of the Inventions eligible under the copyright laws are "work made for hire." At the request of the Employer, the Executive will do all things deemed by the Employer to be reasonably necessary to perfect title to the Inventions in the Employer and to assist in obtaining for the Employer such patents, copyrights or other protection as may be provided under law and desired by the Employer, including but not limited to executing and signing any and all relevant applications, assignments or other instruments. The Executive hereby irrevocably designates and appoints the Employer and its duly authorized officers and agents as the Executive’s agents and attorneys-in-fact to act for and on the Executive’s behalf and instead of the Executive, to execute and file any documents and to do all other lawfully permitted acts to further the above purposes with the same legal force and effect as if executed by the Executive, and the Executive acknowledges that this designation and appointment constitutes an irrevocable power of attorney and is coupled with an interest. Notwithstanding the foregoing, the Employer hereby notifies the Executive that the provisions of this Paragraph 8 shall not apply to any Inventions for which no equipment, supplies, facility or trade secret information of the Employer was used and which were developed entirely on the Executive's own time, unless (1) the Invention relates (i) to the business of the Employer, or (ii) to actual or demonstrably anticipated research or development of the Employer, or (2) the Invention results from any work performed by the Executive for the Employer.
K. The Executive agrees to furnish to the Employer on demand at any time during the term of his employment, and upon the termination of his employment, any other records, notes, computer printouts, computer programs, computer software, price lists, microfilm, or any other documents related to the Employer's business, including originals and copies thereof. The Executive recognizes and agrees that he has no expectation of privacy with respect to the Employer’s telecommunications, networking or information processing systems (including, without limitation, stored computer files, email messages and voice messages) and that the Executive’s activity and any files or messages on or using any of those systems may be monitored at any time without notice.
L. The Executive acknowledges that he may become aware of "material" nonpublic information relating to customers whose stock is publicly traded. The Executive acknowledges that he is prohibited by law as well as by Employer policy from trading in the shares of such customers while in possession of such information or directly or indirectly disclosing such information to any other persons so that they may trade in these shares. For purposes of this sub-paragraph L, "material" information may include any information, positive or negative, which might be of significance to an investor in determining whether to purchase, sell or hold the stock of publicly traded customers. Information may be significant for this purpose even if it would not alone determine the investor's decision. Examples include a potential business acquisition, internal financial information that departs in any way from what the market would expect, the acquisition or loss of a major contract, or an important financing transaction.
M. The Employer does not wish to incorporate any unlicensed or unauthorized material into its products or services or those of its subsidiaries. Therefore, the Executive agrees that he will not knowingly disclose to the Employer, use in the Employer's business, or cause the Employer to use, any information or material which is confidential or proprietary to any third party including, but not limited to, any former employer, competitor or client, unless the Employer has a right to receive and use such information. The Executive will not incorporate into his work a
Appears in 1 contract
Protective Covenants. The Executive acknowledges and agrees that solely by virtue of his employment by, and relationship with, JGT and the Employer, he has acquired and will acquire "Confidential Information," ", as hereinafter defined, as well as special knowledge of JGT's and the Employer's relationships with its their customers, and that, but for his association with JGT and the Employer, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that JGT and the Employer has have long term, near-permanent relationships with its their customers, and that those relationships were developed at great expense and difficulty to JGT and the Employer Employer, over several years of close and continuing involvement; and (ii) that JGT's and the Employer's relationships and goodwill with its their customers are and will continue to be valuable, special and unique assets of the Employer; Employer and (iii) that the identity of their customers is kept under tight security with the Employer has and cannot be readily ascertained from publicly available materials or from materials available to the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing models, formulas, software applications and designs and other technologies and devices utilized in the management of communicationsEmployer's competitors. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is are hereby acknowledged, and as a condition precedent to the Employer entering into this AgreementAgreement and the Assignment, and as an inducement to the Employer to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employer.;
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.;
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.;
D. The Executive agrees that, if Executive ceases to be employed by Employer during the time of his employment and for a period of one (1) year after the termination of the Executive's employment hereunder for any reason whatsoever or for no reason, including without limitation the non-renewal of this Agreement by the Companywhether voluntary or involuntary, or, if longer, during any Salary Continuation Period, the Executive will not, for a period of two years , except on behalf of the Employer, anywhere in the United States of North America or in any other place or venue where the Employer or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct or operate, its business prior to the date of the Executive's termination of Executive's employment:
(1) directly or indirectly, contact, solicit or direct any person, firm, corporation, association or other entity corporation to contact or solicit, any of the Employer's customers or prospective customers (as hereinafter defined) for the purpose of providing any products and/or selling or attempting to sell, services that are the same as or similar to the products and services provided by the Employer to its customers during the term hereof;hereof (the "BUSINESS"). In addition, the Executive will not disclose the identity of any such customers or prospective customers, or any part thereof, to any person, firm, corporation, association, or other entity for any reason or purpose whatsoever; and
(2) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit any of the Employer's then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself or any company, individual or other entity; or
(3) directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the designBusiness; and
(3) solicit or accept if offered to him, manufacturewith or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is an employee of the Employer, nor solicit any of the Employer's employees to terminate employment with the Employer, nor agree to hire any employee of the Employer into employment with himself or any company, individual or other entity; and
(4) act as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the Employer's customers or prospective customers, with respect to or in any way with regard to any aspect of the Business;
E. The Executive acknowledges and agrees that the scope described above is necessary and reasonable in order to protect the Employer in the conduct of its Business and that, if the Executive becomes employed by another employer, he shall be required to disclose the existence of this Paragraph 9 to such employer and the Executive hereby consents to and the Employer is hereby given permission to disclose the existence of this Paragraph 9 to such employer;
F. For purposes of this Paragraph 9, "customer" shall be defined as any person, firm, or entity, including any affiliates thereof, that purchased any type of service from the Employer or JGT or is or was doing business with the Employer, JGT or the Executive within the twelve (12) month period immediately preceding termination of the Executive's employment. For purposes of this Paragraph 9, "prospective customer" shall be defined as any person, firm, or entity contacted or solicited by the Employer, JGT or the Executive (whether directly or indirectly) or who contacted the Employer, JGT or the Executive (whether directly or indirectly) within the twelve (12) month period immediately preceding termination of the Executive's employment for the purpose of having such persons, firms, or entities become a customer of the Employer or JGT.
G. The Executive agrees that both during his employment and thereafter the Executive will not, for any reason whatsoever, use for himself or disclose to any person not employed by the Employer any "Confidential Information" of the Employer acquired by the Executive during his relationship with the Employer or with JGT, both prior to and during the term of this Agreement. The Executive further agrees to use Confidential Information solely for the purpose of performing duties with the Employer and further agrees not to use Confidential Information for his own private use or commercial purposes or in any way detrimental to the Employer. The Executive agrees that "Confidential Information" includes but is not limited to: (1) any financial, business, planning, operations, services, potential services, products, potential products, technical information and/or know-how, formulas, production, purchasing, marketing, sales, personnel, customer, broker, supplier, or servicing of products then constituting ten percent (10%) or more of the annual revenues other information of the Employer; or(2) any papers, data, records, processes, methods, techniques, systems, models, samples, devices, equipment, compilations, invoices, customer lists, or documents of the Employer; (3) any confidential information or trade secrets of any third party provided to the Employer in confidence or subject to other use or disclosure restrictions or limitations; and (4) any other information, written, oral, or electronic, whether existing now or at some time in the future, whether pertaining to current or future developments, and whether previously accessed during the Executive's tenure with JGT or to be accessed during his future employment with the Employer, which pertains to the Employer's affairs or interests or with whom or how the Employer does business. The Employer acknowledges and agrees that Confidential Information does not include (1) information properly in the public domain, or (2) information in the Executive's possession prior to the date of his original employment with JGT;
Appears in 1 contract
Sources: Employment Agreement (Aasche Transportation Services Inc)
Protective Covenants. The Executive acknowledges and agrees that solely by virtue of his employment by, and relationship with, the Employer, he has acquired and will acquire "Confidential Information," as hereinafter defined, as well as special knowledge of the Employer's relationships with its customers, and that, but for his association with the Employer, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer has long term, near-permanent relationships with its customers, and that those relationships were developed at great expense and difficulty to the Employer over several years of close and continuing involvement; (ii) that the Employer's relationships and goodwill with its customers are and will continue to be valuable, special and unique assets of the Employer; and (iii) that the Employer has the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing models, formulas, software applications and designs and other technologies and devices utilized in the management of communications. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and as a condition precedent to the Employer entering into this Agreement, and as an inducement to the Employer to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employer.
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.
D. The Executive agrees that, if Executive ceases to be employed by Employer for any reason, including without limitation the non-renewal of this Agreement by the Company, the Executive will not, for a period of two years , except on behalf of the Employer, anywhere in the United States of America or in any other place or venue where the Employer or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct or operate, its business prior to the date of the termination of Executive's employment:
(1) directly or indirectly, contact, solicit or direct any person, firm, corporation, association or other entity to contact or solicit, any of the Employer's customers or prospective customers (as hereinafter defined) for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer to its customers during the term hereof;
(2) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit any of the Employer's then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself or any company, individual or other entity; or
(3) directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the design, manufacture, marketing, or servicing of products then constituting ten percent (10%) or more of the annual revenues of the Employer; or
(4) act as a consultant, advisor, officer, manager, agent, director, partner, independent contractor, owner, or employee for or on behalf of any of the Employer's customers or prospective customers (as hereinafter defined), with respect to or in any way with regard to any aspect of the Employer's business and/or any other business activities in which the Employer engages during the term hereof.
E. The Executive acknowledges and agrees that the scope described above is necessary and reasonable in order to protect the Employer in the conduct of its business and that, if the Executive becomes employed by another employer, he shall be required to disclose the existence of this Paragraph 10 to such employer and the Executive hereby consents to and the Employer is hereby given permission to disclose the existence of this Paragraph 10 to such employer.
F. For purposes of this Paragraph 10, "customer" shall be defined as any person, firm, corporation, association, or entity that purchased any type of product and/or service from the Employer or is or was doing business with the Employer or the Executive within the twelve (12) month period immediately preceding termination of the Executive's employment. For purposes of this Paragraph 10, "prospective customer" shall be defined as any person, firm, corporation, association, or entity (i) contacted or solicited by the Executive (whether directly or indirectly) or (ii) to the Executive's knowledge, contacted or solicited by any other employee or representative of the Employer, or (iii) who contacted the Executive (whether directly or indirectly) or (iv) to the Executive's knowledge, who contacted the Employer within the twelve (12) month period immediately preceding termination of the Executive's employment for the purpose of having such persons, firms, corporations, associations, or entities become a customer of the Employer.
G. The Executive agrees that both during his employment and thereafter the Executive will not, for any reason whatsoever, use for himself or disclose to any person not employed by the Employer any "Confidential Information" of the Employer acquired by the Executive during his relationship with the Employer, both prior to and during the term of this Agreement. The Executive further agrees to use Confidential Information solely for the purpose of performing duties with the Employer and further agrees not to use Confidential Information for his own private use or commercial purposes or in any way detrimental to the Employer. The Executive agrees that Confidential Information includes but is not limited to: (1) any financial, engineering, business, planning, operations, services, potential services, products, potential products, technical information and/or know-how, organization charts, formulas, business plans, production, purchasing, marketing, pricing, sales, profit, personnel, customer, broker, supplier, or other lists or information of the Employer; (2) any papers, data, records, processes, methods, techniques, systems, models, samples, devices, equipment, compilations, invoices, customer lists, or documents of the Employer; (3) any confidential information or trade secrets of any third party provided to the Employer in confidence or subject to other use or disclosure restrictions or limitations; and (4) any other information, written, oral, or electronic, whether existing now or at some time in the future, whether pertaining to current or future developments, and whether previously accessed during the Executive's tenure with the Employer or to be accessed during his future employment with the Employer, which pertains to the Employer's affairs or interests or with whom or how the Employer does business. The Employer acknowledges and agrees that Confidential Information does not include (x) information properly in the public domain, or (y) information in the Executive's possession prior to the date of his original employment with the Employer, except to the extent that such information is or has become a trade secret of the Employer or is or otherwise has become the property of the Employer.
H. In the event that the Executive intends to communicate information to any individual(s), entity or entities (other than the Employer), to permit access by any individual(s), entity or entities (other than the Employer), or to use information for the Executive's own account or for the account of any individual(s), entity or entities (other than the Employer) and such information would be Confidential Information hereunder but for the exceptions set out at (x) and (y) of Paragraph 10G of this Agreement, the Executive shall notify the Employer of such intent in writing, including a description of such information, no less than fifteen (15) days prior to such communication, access or use.
I. During and after the term of employment hereunder, the Executive will not remove from the Employer's premises any documents, records, files, notebooks, correspondence, reports, video or audio recordings, computer printouts, computer programs, computer software, price lists, microfilm, drawings or other similar documents containing Confidential Information, including copies thereof, whether prepared by him or others, except as his duty shall require, and in such cases, will promptly return such items to the Employer. Upon termination of his employment with the Employer, all such items including summaries or copies thereof, then in the Executive's possession, shall be returned to the Employer immediately.
J. The Executive recognizes and agrees that all ideas, inventions, patents, copyrights, copyright designs, trade secrets, trademarks, processes, discoveries, enhancements, software, source code, catalogues, prints, business applications, plans, writings, and other developments or improvements and all other intellectual property and proprietary rights and any derivative work based thereon (the "Inventions") made, conceived, or completed by the Executive, alone or with others, during the term of his employment, whether or not during working hours, that are within the scope of the Employer's business operations or that relate to any of the Employer's work or projects (including any and all inventions based wholly or in part upon ideas conceived during the Executive's employment with the Employer), are the sole and exclusive property of the Employer. The Executive further agrees that (1) he will promptly disclose all Inventions to the Employer and hereby assigns to the Employer all present and future rights he has or may have in those Inventions, including without limitation those relating to patent, copyright, trademark or trade secrets; and (2) all of the Inventions eligible under the copyright laws are "work made for hire." At the request of the Employer, the Executive will do all things deemed by the Employer to be reasonably necessary to perfect title to the Inventions in the Employer and to assist in obtaining for the Employer such patents, copyrights or other protection as may be provided under law and desired by the Employer, including but not limited to executing and signing any and all relevant applications, assignments or other instruments.
Appears in 1 contract
Sources: Employment Agreement (Metasolv Inc)
Protective Covenants. The Executive acknowledges and agrees that solely by virtue of his employment by, and relationship with, the Employerwith Ultrak, he has acquired and will acquire "Confidential Information," CONFIDENTIAL INFORMATION", as hereinafter defined, as well as special knowledge of the Employer's relationships with its customerscustomers and business brokers, and that, but for his association with the Employer, the Executive would not or will not have had access to said Confidential Information or knowledge of said relationships. The Executive further acknowledges and agrees (i) that the Employer has long term, near-permanent relationships with its customers, and that those relationships were developed at great expense and difficulty to the Employer over several years of close and continuing involvement; (ii) that the Employer's relationships and goodwill with its customers are and will continue to be valuable, special and unique assets of the Employer and that the identity of its customers is kept under tight security with the Employer and cannot be readily ascertained from publicly available materials or from materials available to the Employer's competitors; and (iii) that the Employer has the following protectable interests that are critical to its competitive advantage in the industry and would be of demonstrable value in the hands of a competitor: pricing models. The Executive acknowledges and agrees that by virtue of his employment by and relationship with Ultrak that Ultrak agrees to provide the Executive with specialized training and instruction regarding Ultrak's operations, formulasproducts sold and serviced by Ultrak, software applications as well as marketing and designs operational techniques and other technologies strategies to the extent applicable to the Executive's employment with Ultrak. This training may be provided through direct experience or otherwise. The Executive acknowledges and devices utilized agrees that by virtue of his employment by and relationship with Ultrak that Ultrak agrees to provide the Executive with an interest in the management growth of communicationsthe goodwill of Ultrak through his employment. Ultrak also agrees to provide expense reimbursements in accordance with Ultrak policy, access to confidential information, and contact with customers, contractors and vendors in order to help Ultrak develop goodwill for Ultrak. In return for the consideration described in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is are hereby acknowledged, and as a condition precedent to the Employer entering into this Agreement, and as an inducement to the Employer to do so, the Executive hereby represents, warrants, and covenants as follows:
A. The Executive has executed and delivered this Agreement as his free and voluntary act, after having determined that the provisions contained herein are of a material benefit to him, and that the duties and obligations imposed on him hereunder are fair and reasonable and will not prevent him from earning a comparable livelihood following the termination of his employment with the Employer.;
B. The Executive has read and fully understands the terms and conditions set forth herein, has had time to reflect on and consider the benefits and consequences of entering into this Agreement, and has had the opportunity to review the terms hereof with an attorney or other representative, if he so chooses.
C. The execution and delivery of this Agreement by the Executive does not conflict with, or result in a breach of or constitute a default under, any agreement or contract, whether oral or written, to which the Executive is a party or by which the Executive may be bound. In addition, the Executive has informed the Employer of, and provided the Employer with copies of, any non-competition, confidentiality, work-for-hire or similar agreements to which the Executive is subject or may be bound.
D. The Executive agrees that, if Executive ceases to be employed by Employer for any reason, including without limitation the non-renewal of this Agreement by the Company, the Executive will not, for a period of two years , except on behalf of the Employer, anywhere in the United States of America or in any other place or venue where the Employer or any affiliate, subsidiary, or division thereof now conducts or operates, or may conduct or operate, its business prior to the date of the termination of Executive's employment:
(1) directly or indirectly, contact, solicit or direct any person, firm, corporation, association or other entity to contact or solicit, any of the Employer's customers or prospective customers (as hereinafter defined) for the purpose of providing any products and/or services that are the same as or similar to the products and services provided by the Employer to its customers during the term hereof;
(2) solicit or accept if offered to him, with or without solicitation, on his own behalf or on behalf of any other person, the services of any person who is a then current employee of the Employer (or was an employee of the Employer during the year preceding such solicitation), nor solicit any of the Employer's then current employees (or an individual who was employed by or engaged by the Employer during the year preceding such solicitation) to terminate employment or an engagement with the Employer, nor agree to hire any then current employee (or an individual who was an employee of the Employer during the year preceding such hire) of the Employer into employment with himself or any company, individual or other entity; or
(3) directly or indirectly, whether as an investor (excluding investments representing less than one percent (1%) of the common stock of a public company), lender, owner, stockholder, officer, director, consultant, employee, agent, salesperson or in any other capacity, whether part-time or full-time, become associated with any business involved in the design, manufacture, marketing, or servicing of products then constituting ten percent (10%) or more of the annual revenues of the Employer; orentering
Appears in 1 contract
Sources: Employment Agreement (Ultrak Inc)