Covenant Not to Compete or Solicit (a) The Executive recognizes that the services to be performed by him hereunder are special, unique and extraordinary. The parties confirm that it is reasonably necessary for the protection of the Corporation that the Executive agree, and accordingly, the Executive does hereby agree, that he shall not, directly or indirectly, at any time during the "Restricted Period" within the "Restricted Area" (as those terms are defined in Section 9(e) below):
(i) except as provided in Subsection (c) below, engage in any line of business in which the Corporation was engaged or had a formal plan to enter during the period of Executive's employment with the Corporation, including but not limited to the business of operating an online insurance marketplace, either on his own behalf or as an officer, director, stockholder, partner, consultant, associate, employee, owner, agent, creditor, independent contractor, or co-venturer of any third party; or
(ii) solicit to employ or engage, for or on behalf of himself or any third party, any employee or agent of the Corporation.
(b) The Executive hereby agrees that he will not, directly or indirectly, for or on behalf of himself or any third party, at any time during the Term and during the Restricted Period solicit any customers of the Corporation with respect to products competitive with products then being sold by the Corporation.
(c) If any of the restrictions contained in this Section 9 shall be deemed to be unenforceable by reason of the extent, duration or geographical scope thereof, or otherwise, then the court making such determination shall have the right to reduce such extent, duration, geographical scope, or other provisions hereof, and in its reduced form this Section shall then be enforceable in the manner contemplated hereby.
(d) This Section 9 shall not be construed to prevent the Executive from owning, directly or indirectly, in the aggregate, an amount not exceeding five percent (5%) of the issued and outstanding voting securities of any class of any corporation whose voting capital stock is traded or listed on a national securities exchange or in the over-the-counter market.
(e) The term "RESTRICTED PERIOD," as used in this Section 9, shall mean the period of the Executive's actual employment hereunder, plus twelve (12) months after the date the Executive is actually no longer employed by the Corporation. The term "RESTRICTED AREA" as used in this Section 9 shall mean the continental United States.
Agreement Not to Compete (a) None of Trident and Athens NA or any member of their respective Groups, on the one hand, and Fountain or any member of the Fountain Group, on the other hand, shall, for a period of three (3) years following the Closing Date, establish or acquire any new businesses that involve the sale of products or the provision of services that (i) with respect to Trident or Athens NA or any member of their respective Groups, compete with the Fountain Business or (ii) with respect to Fountain or any member of the Fountain Group compete with the Trident Business or the Athens North American R/SB Business (“Competitive Activities”).
(b) Notwithstanding Section 5.2(a), Trident, Athens NA and Fountain and any member of their respective Groups shall be permitted to continue to conduct their current Businesses and extensions thereof (including any sale of any product or service that otherwise incorporates or uses as a component any of the products that would otherwise constitute Competitive Activities); provided that, for purposes of this Section 5.2, the Trident Retained Business shall be deemed to exclude the Athens North American R/SB Business.
(c) Notwithstanding Section 5.2(a), Trident, Athens NA and Fountain and any member of their respective Groups shall also be permitted to (I) acquire and own any interests in any publicly-traded Persons that engage in Competitive Activities so long as such interests constitute less than 5% of such Person’s voting securities, (II) acquire and own any interests in any Persons not publicly-traded that engage in Competitive Activities so long as such interests constitute less than 10% of such Person’s voting securities, (III) sell or divest any or all of its assets or businesses to any Person that is not an Affiliate, and such Person shall in no way be bound by the restrictions set forth in Section 5.2(a) and (IV) acquire and own any interests in any Persons that engage in Competitive Activities so long as the Competitive Activities of such Person constitute less than 25% of such Person’s consolidated annual net revenues for its most recently completed fiscal year (a “Permitted Acquiree”), and, in the case of clause (IV), each of Trident, Athens NA and Fountain and any member of their respective Groups, as applicable, uses its reasonable best efforts to dispose of the businesses of such Permitted Acquiree in Competitive Activities within twelve (12) months from the closing of such acquisition; provided that such twelve (12) month period shall be extended in the event that a definitive agreement to dispose of such business within such twelve (12) month period has been entered into (x) for three (3) months, to permit the closing of such transaction or (y) for a reasonable period of time, in the event such definitive agreement is terminated as a result of the failure of a closing condition, the failure to obtain antitrust or other regulatory clearance or a breach by the other party to the agreement, to permit Trident, Athens NA or Fountain or such member of their respective Groups, as applicable to seek an alternative disposition transaction.
Agreement Not to Solicit Except as required in the performance of Executive’s duties as an employee of the Company, during Executive’s employment with the Company (whether before, during, or after the Term) and during the Restricted Period, Executive shall not, directly or indirectly, solicit, request, advise, induce or attempt to induce any vendor, supplier or other business contact of the Company to cancel, curtail, cease doing business with, or otherwise adversely change its relationship with the Company.
Agreement Not to Solicit Employees Executive agrees that during Executive’s employment with the Company hereunder and during the Non-Solicitation Period, Executive will not, either directly or indirectly, on Executive’s own behalf or in the service or on the behalf of others solicit, divert, or hire away, or attempt to solicit, divert, or hire away any person then employed by the Company, nor encourage anyone to leave the Company’s employ. The Non-Solicitation Period set forth in this Section 11.5 shall be tolled during any period in which the Executive is in breach of the restriction set forth herein.
Agreement Not to Solicit Customers Executive agrees that during Executive’s employment with the Company hereunder and during the Non-Solicitation Period, Executive will not, either directly or indirectly, on Executive’s own behalf or in the service or on behalf of others, solicit, divert, or appropriate, or attempt to solicit, divert, or appropriate, to any business that engages in Restricted Field activities in the Business Territory (i) any person or entity whose account with the Company was sold or serviced by or under the supervision of Executive during the twelve (12) months preceding the termination of such employment, or (ii) any person or entity whose account with the Company has been directly solicited at least twice by the Company within the year preceding the termination of employment (the “Customers”). The Non-Solicitation Period set forth in this Section 11.4 shall be tolled during any period in which the Executive is in breach of the restriction set forth herein.
Covenant Not to Solicit If the Executive is receiving payments and benefits under Section 2 above (or subsequently becomes entitled thereto because of a termination described in Section 2(a)(ii)), then, for a period of two (2) years following the Executive’s Termination Date, the Executive shall not: (i) solicit, encourage or take any other action which is intended to induce any other employee of the Company to terminate his employment with the Company; or (ii) interfere in any manner with the contractual or employment relationship between the Company and any such employee of the Company. The foregoing shall not prohibit the Executive or any entity with which the Executive may be affiliated from hiring a former employee of the Company; provided, that such hiring results exclusively from such former employee’s affirmative response to a general recruitment effort.
Covenant Not to Compete (a) Each of Parent and Seller agrees that for a period of 3 years after the Closing Date neither of them nor any of their respective Affiliates shall, directly or indirectly, for himself, herself or itself, or on behalf of any other person, firm, entity or other enterprise, be employed by, be an officer, director or manager of, act as a consultant for, be a partner in, have a proprietary interest in, or loan money to any person, enterprise, partnership, association, corporation, limited liability company, joint venture or other entity which is directly or indirectly in the business of owning, operating or managing any mobile radiological, EKG, or any other business currently conducted by Seller (the "Applicable Businesses"), now or hereafter competitive with any such Applicable Business of Buyer (including, without limitation, the Business), IHS or any of their respective Affiliates, located in any state in which Buyer, IHS or Seller is currently conducting such business; provided, however, that nothing contained herein shall restrict Seller from performing its obligations under any Temporary Excluded Contracts as provided in Section 1.4(c) or restrict Parent or any of its Affiliates from operating or owning any of their existing businesses or investments or renting or leasing any equipment, provided that they do not expand into the foregoing prohibited activities. The restrictions contained in this Section 5.5 (other than the confidentiality provisions) shall not be binding upon any third party purchaser of Parent, or of any assets, stock, division or business unit of Parent or of any Affiliate of Parent.
(b) Seller and Parent represent and warrant that there are no employees, consultants or agents of Parent having expertise in the operation of the Applicable Business or having a relationship with any customers of the Applicable Business. Notwithstanding anything to the contrary contained in this Agreement, the foregoing representation and warranty and all indemnification rights with respect thereto shall not expire until the date that is three (3) years after the date hereof.
(c) Seller and the Parent hereby agree that, for a period of three (3) years following the date hereof, without the express written consent of IHS, none of Seller, the Parent and their respective Affiliates will directly or indirectly, for themselves or on behalf of any other person, firm, entity or other enterprise:
(i) solicit any client, facility or patient who, prior to the date hereof, was a client, facility or patient of Seller with respect to the Applicable Business; or
(ii) hire, entice away or in any other manner persuade any employee, consultant, representative or agent who was an employee, consultant, representative or agent of Seller prior to the date hereof, to alter, modify or terminate their relationship with Buyer or IHS.
(d) The Parent and Seller each acknowledges that the restrictions contained in this Section 5.5 are reasonable and necessary to protect the legitimate business interests of Buyer and IHS and that any violation thereof by either of them would result in irreparable harm to Buyer and IHS, and that damages in the event of such a breach will be difficult, if not impossible, to ascertain. Accordingly, the Parent and Seller each agrees that upon the violation by it of any of the restrictions contained in this Section 5.5, Buyer and IHS shall be entitled to obtain from any court of competent jurisdiction a preliminary and permanent injunction as well as any other relief provided at law, equity, under this Agreement or otherwise, without the necessity of posting any bond or other security whatsoever. In the event any of the foregoing restrictions are adjudged unreasonable in any proceeding, then the parties agree that the period of time or the scope of such restrictions (or both) shall be adjusted to such a manner or for such a time (or both) as is adjudged to be reasonable.
(e) The Parent and Seller each acknowledges that the covenants contained in this Section 5.5 are independent covenants and that any failure by the Buyer or IHS to perform its obligations under this Agreement shall not be a defense to enforcement of the covenants contained in this Agreement, including but not limited to a temporary or permanent injunction.
(f) Seller and Parent agree to take any and all actions necessary, including, without limitation, commencement of legal proceedings, to enforce each of the non-competition agreements set forth on Schedule 1.4
(a) hereto upon the request of and in accordance with the instructions of Buyer. Seller and Parent shall not be required to advance or expend any funds in connection with their respective obligations under this subsection (f). Buyer shall indemnify and hold harmless Seller and Parent from any loss, liability, damage, cost and expense, including without limitation, reasonable legal fees and expenses, arising out of taking any such actions at Buyer's request. Buyer acknowledges that Seller intends to terminate all Excluded Contracts (not otherwise terminated); provided that Seller shall not shorten the non-competition provisions of such agreements in effect immediately prior to their termination.
Covenant Not to Solicit Customers During the Restricted Period, within the Territory Executive shall not, directly or indirectly, individually or on behalf of any other person or entity (other than a member of the Bank Group), offer to provide banking services to any person, partnership, corporation, limited liability company, or other entity who is or was (i) a customer of any member of the Bank Group during any part of the twelve (12) month period immediately prior to the Date of Termination, or (ii) a potential customer to whom any member of the Bank Group offered to provide banking services during any part of the twelve (12) month period immediately prior to the Date of Termination.
Covenant Not to Solicit Employees The Executive agrees not to, directly or indirectly, solicit or employ the services of any officer or employee of the Bank (including an individual who was an officer or employee of the Bank during the one year period following the Executive’s termination) for one year after the Executive’s employment termination.
Covenants Not to Compete No Initial Stockholder, employee, officer or director of the Company is subject to any noncompetition agreement or non-solicitation agreement with any employer or prior employer which could materially affect his ability to be an Initial Stockholder, employee, officer and/or director of the Company.
