{"id":40135,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/non-competition-and-non-solicitation-employment-agreement-new.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"non-competition-and-non-solicitation-employment-agreement-new","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/non-competition-and-non-solicitation-employment-agreement-new.html","title":{"rendered":"Non-Competition and Non-Solicitation Employment Agreement &#8211; New Air Corp. and David Neeleman"},"content":{"rendered":"<pre>                 NON-COMPETITION AND NON-SOLICITATION AGREEMENT\n\n            THIS NON-COMPETITION AND NON-SOLICITATION EMPLOYMENT AGREEMENT (the\n\"Non-Competition Agreement\"), dated as of this 19th day of November, 1998, is\nentered into by and among New Air Corporation (the \"Company\" or \"Employer\") and\nDavid Neeleman (\"Executive\"). In consideration of the mutual covenants and\nagreements hereinafter set forth, the parties agree as follows:\n\n            1. NON-COMPETITION AND NON-COMPETITION COVENANT.\n\n            1.1 NON-SOLICITATION For so long as Executive's shares of Class A-1\nCommon Stock continue to vest in accordance with the terms of that certain\nRestricted Stock Purchase Agreement between the Company and Executive dated\nSeptember 18, 1998 and for one-year thereafter if the vesting of all such shares\nis accelerated pursuant to Section 5 thereof (the \"Term\"), Executive will not\nencourage or solicit any employee of the Company or any affiliate to leave the\nCompany's or any affiliate's employ for any reason or interfere in any material\nmanner with employment relationships at the time existing between the Company\nand its current employees, except as may be required in any bona fide\ntermination decision regarding any Company employee\n\n            1.2 NON-COMPETITION. During the Term, Executive shall not directly\nor indirectly own, manage, operate, join, control or participate in the\nownership, management, operation or control of, or be employed by or connected\nin any manner with, any enterprise which is engaged in any business competitive\nwith that which the Company is at the time conducting or proposing to conduct;\nPROVIDED, however, that such restriction shall not apply to any passive\ninvestment representing an interest of less than two percent (2%) of an\noutstanding class of publicly traded securities of any corporation or other\nenterprise which is not, at the time of such investment, engaged in a business\ngeographically competitive with the Company's business.\n\n            1.3 Executive acknowledges that the specialized nature of his\nknowledge of the Company's proprietary information, trade secrets and other\nintellectual property are such that a breach of his covenant not to compete\ncontained in this Section 1 of this Non-Competition Agreement would necessarily\nand inevitably result in a disclosure, misappropriation and misuse of such\nproprietary information, trade secrets and other intellectual property.\nAccordingly, Executive acknowledges and agrees that such a breach would inflict\nunique and irreparable harm upon the Company and that the Company shall be\nentitled, in addition to its other rights and available remedies, to enforce, by\ninjunction or decree of specific performance, Executive's obligations set forth\nherein.\n\n            2. MISCELLANEOUS.\n\n            2.1 NOTICES. All notices, demands and requests required by this\nNon-Competition Agreement shall be in writing and shall be deemed to have been\ngiven or made for all purposes (i) upon personal delivery, (ii) one day after\nbeing sent, when sent by professional overnight courier service, (iii) five days\nafter posting when sent by registered or certified mail, or (iv) on the date of\ntransmission when sent by telegraph, telegram, telex, or other form of \"hard\ncopy\" \n\n\ntransmission, to either party hereto at the address set forth below or at such\nother address as either party may designate by notice pursuant to this Section\n7.\n\n            If to the Company, to:\n\n            New Air Corporation\n            6322 South 3000 East, Suite L201\n            Salt Lake City, UT. 84121\n\n            If to Executive, to:\n\n            David Neeleman\n            2445 East Haven Lane\n            Salt Lake City, UT. 84117\n\n            2.2 ASSIGNMENT. This Non-Competition Agreement shall be binding on,\nand shall inure to the benefit of, the parties hereto and their respective\nheirs, legal representatives, successors and assigns; provided, however, that\nExecutive may not assign, transfer or delegate his rights or obligations\nhereunder and any attempt to do so shall be void.\n\n            2.3 ENTIRE AGREEMENT. This Non-Competition Agreement contains the\nentire agreement of the parties with respect to the subject matter hereof, and\nall prior agreements, written or oral, are merged herein and are of no further\nforce or effect. Executive has had an opportunity to review this Non-Competition\nAgreement with counsel of his own choice.\n\n            2.4 AMENDMENT. This Non-Competition Agreement may be modified or\namended only by a written agreement signed by the Company and Executive.\n\n            2.5 WAIVERS. No waiver of any term or provision of this\nNon-Competition Agreement will be valid unless such waiver is in writing signed\nby the party against whom enforcement of the waiver is sought. The waiver of any\nterm or provision of this Non-Competition Agreement shall not apply to any\nsubsequent breach of this Non-Competition Agreement.\n\n            2.6 COUNTERPARTS. This Non-Competition Agreement may be executed in\nseveral counterparts, each of WHICH shall be deemed an original, but together\nthey shall constitute one and the same instrument.\n\n            2.7 SEVERABILITY. The provisions of this Non-Competition Agreement\nshall be deemed severable, and if any part of any provision is held illegal,\nvoid or invalid under applicable law, such provision may be changed to the\nextent reasonably necessary to make the provision, as so changed, legal, valid\nand binding. If any provision of this Non-Competition Agreement is held illegal,\nvoid or invalid in its entirety, the remaining provisions of this\nNon-Competition Agreement shall not in any way be affected or impaired but shall\nremain binding in accordance with their terms.\n\n\n                                       2\n\n\n      2.8 GOVERNING LAW. THIS NON-COMPETITION AGREEMENT AND THE RIGHTS AND\nOBLIGATIONS OF THE COMPANY AND EXECUTIVE HEREUNDER SHALL BE DETERMINED UNDER,\nGOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE\nAS APPLIED TO AGREEMENTS AMONG DELAWARE RESIDENTS ENTERED INTO AND TO BE\nPERFORMED ENTIRELY WITHIN DELAWARE.\n\n      2.9 ARBITRATION. The Executive understands and agrees that, as a condition\nof his employment with the Company, any and all disputes that the Executive may\nhave with the Company, or any of its employees, officers, directors, agents or\nassigns, which arise out of the Executive's employment or investment or\ncompensation shall be resolved through final and binding arbitration, as\nspecified in this Non-Competition Agreement. This shall include, without\nlimitation, any controversy, claim or dispute of any kind, including disputes\nrelating to any employment by the Company or the termination thereof, claims for\nbreach of contract or breach of the covenant of good faith and fair dealing,\ninfliction of emotional distress, defamation and any claims of discrimination,\nharassment or other claims under Title VII of the Civil Rights Act of 1964, the\nAge Discrimination in Employment Act, the Americans With Disabilities Act, the\nEmployee Retirement Income Securities Act, or any other federal, state or local\nlaw or regulation now in existence or hereinafter enacted and as amended from\ntime to time concerning in any way the subject of the Executive's employment\nwith the Company or its termination. The only claims NOT covered by this\nNon-Competition Agreement are claims for benefits under the unemployment\ninsurance or workers' compensation laws, and any claims pursuant to paragraph 5\nof this Non-Competition Agreement which will be resolved pursuant to those laws.\nAny disputes and\/or claims covered by this Non-Competition Agreement shall be\nsubmitted to final and binding arbitration to be conducted in New York City, New\nYork, in accordance with the rules and regulations of the American Arbitration\nAssociation. The Executive and the Company will split the cost of the\narbitration filing and hearing fees and the cost of the arbitrator. Each side\nwill bear its own attorneys' fees, and the arbitrator will not have authority to\naward attorneys' fees UNLESS a statutory section at issue in the dispute\nauthorizes the award of attorneys' fees to the prevailing party, in which case\nthe arbitrator has authority to make such award as permitted by the statute in\nquestion. The arbitration shall be instead of any civil litigation; this means\nthat the Executive is WAIVING ANY RIGHT TO A JURY TRIAL, and that the\narbitrator's decision shall be final and binding to the fullest extent permitted\nby law and enforceable by any court having jurisdiction thereof.\n\n\n                                       3\n\n\n            IN WITNESS WHEREOF, the parties hereto have executed this\nNon-Competition Agreement as of the date first above written.\n\n                                       \"COMPANY\"\n                                       NEW AIR CORPORATION\n\n                                       By: \/s\/ Thomas E. Kelly\n                                           ------------------------------------\n                                       Name: Thomas E. Kelly\n                                            -----------------------------------\n                                       Title: Executive Vice President\n                                             ----------------------------------\n\n                                       \"EXECUTIVE\"\n\n                                       \/s\/ David Neeleman\n                                       ----------------------------------------\n                                       David Neeleman\n\n\n                                       4\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7939],"corporate_contracts_industries":[9521],"corporate_contracts_types":[9539,9549],"class_list":["post-40135","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-jetblue-airways-corp","corporate_contracts_industries-transportation__air","corporate_contracts_types-compensation","corporate_contracts_types-compensation__noncompetition"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40135","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40135"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40135"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40135"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40135"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}