This is the preliminary injunction proposed by PRLN
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
PARACELSIAN, INC., a Delaware
corporation,
Plaintiff, PRILIMINARY INJUNCTION
-v- 97-CV-604 (RSP) (GJD)
JOHN G. BABISH,
Defendant.
WHEREAS plaintiff Paracelsian, Inc. by and through its
attorneys has filed a Summons and Complaint in the United States
District Court for the Northern District of New York against
defendant John G. Babish on Friday, April 25, 1997; and
plaintiff by Order to Show Cause filed with the Clerk of the
Court on May __, 1997 requested that defendant show cause
before this Court why a preliminary injunction should not be issued
against defendant; and
having reviewed Plaintiff's Attorney Affidavit in Support of
Plaintiff's Application for a Preliminary Injunction with exhibits
thereto dated May 2, 1997, and plaintiff's Memorandum of Law
submitted therewith and in support thereof; and
having reviewed defendant's submissions in opposition
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thereto, including:
____________________________________________
______________________________________________________; and
having heard counsel for both parties regarding this application
at a hearing held before this Court on the ___ day of May, 1997;
IT IS HEREBY FOUND that plaintiff has presented specific
and credible evidence showing a likelihood of success on the merits,
irreparable injury in the absence of the requested injunction, lack of
harm to the defendant from the requested injunction, and promotion
of the public interest by imposition of the injunction; such evidence
including without limitation:
that defendant was a key employee of plaintiff who sold over
200,000 shares of Plaintiff's stock shortly before his resignation
from plaintiff, and that defendant acted with the expectation that his
resignation would cause the price of the stock to drop significantly,
and that defendant concealed his intention to resign while selling his
shares, all thereby to better allow defendant to purchase control of
plaintiff; and
that defendant planned to form a company in direct
competition with plaintiff if he failed to so obtain control of
plaintiff, and to compete against plaintiff through that new company
with unfair advantage through the use of misappropriated
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information and other assets of the plaintiff; and
that such conduct, if ultimately proven, would constitute a breach of defendant's Confidentiality Agreement with plaintiff,
which includes in part defendant's consent to entry of the requested
injunction in the event of such breach; and
that such conduct, if ultimately proven, would constitute
violation of federal securities and anti-racketeering laws, and breach
of defendant's common-law obligations to plaintiff; and
that plaintiff will suffer irreparable harm in the absence of the injunction in forms including without limitation: diminution of stock value, loss of good will, loss of corporate opportunities, loss of ability to attract investment, and that the company may not survive
such harms; and
that the harm incurred by plaintiff if the injunction does not issue will far outweigh the harm, if any, that will be suffered by
defendant if the injunction issues; and
that issuance of the injunction will further the public's interest in obtaining access to potentially beneficial products under
development by plaintiff, in discouraging insider stock trading, in
promoting the development of new technologies and products, in discouraging unfair competition among
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corporations, and in securing personal Property; and so
NOW THEREFORE IT IS HEREBY ORDERED that
defendant, either alone or in cooperation with others, shall not
acquire any of the stock or assets of or other interest in the plaintiff; and it is hereby
FURTHER ORDERED that defendant, either alone or in
cooperation with others, shall not take any action intended or likely
to affect the price of plaintiff's stock, including without limitation
the commencement of litigation against plaintiff or its officers or
directors; and it is hereby
FURTHER ORDERED that persons acting in cooperation
with defendant who have notice of the entry of this Order shall not
acquire any of the stock or assets of or other interest in the Plaintiff, or take any action intended or likely to affect the price of plaintiff's stock; and it is hereby
FURTHER ORDERED that defendant shall not use or
disclose to anyone or otherwise disseminate any trade secrets
and/or other confidential information of the plaintiff, including
without limitation any marketing plans, advertising programs, new
products, production processes, financial matters, ingredients,
inventions, ideas, concepts, discoveries, developments, methods,
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research data, and proprietary knowledge or techniques, to anyone
without advance written permission from plaintiff; and it is hereby
FURTHER ORDERED that defendant shall not engage in
self-employment in, or enter into employment by others who are
engaged in, competition with plaintiff; and it is hereby
FURTHER ORDERED that persons acting in cooperation
with defendant who have notice of the entry of this Order shall not
receive or utilize any trade secrets and/or confidential information
of the plaintiff, or compete with plaintiff with the assistance or
other cooperation of the defendant; and
FURTHER ORDERED that defendant shall return
forthwith to plaintiff all property of the plaintiff that is in his
possession or control, including without limitation all records of all
inventions, ideas, concepts, discoveries, developments, processes
and methods in the forms of notes, sketches, drawings, data
reports, models, samples, and equipment or customer lists; and shall
disclose to plaintiff any invention, idea, concept, discovery,
development, process or method, patentable or not, that he might
devise or acquire during the twelve (12) months following March
19, 1997; and
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ALL EFFECTIVE UNTIL FURTHER ORDER OF THIS
COURT; and with any failure to comply with the same punishable
as a contempt of this Court.
Dated: Syracuse, New York
May ___ , 1997 |
