Confidentiality Non Competition Non Solicitation. (a) From and after the date hereof, each Seller shall, and shall cause its Affiliates to, hold, and shall use its reasonable best efforts to cause its or their respective Representatives to hold, in confidence any and all information, whether written or oral, concerning Buyer, the Company and the Company Subsidiaries, except to the extent that such Seller can show that such information: (i) is generally available to and known by the public through no fault of any Seller or any of their respective Affiliates or Representatives or (ii) is lawfully acquired by such Seller, any of its Affiliates or their respective Representatives from and after the date hereof from sources that are not prohibited from disclosing such information by a legal, contractual or fiduciary obligation. If any Seller or any of its Affiliates or their respective Representatives are compelled to disclose any information by judicial or administrative process or by other requirements of Law, such Seller shall promptly notify Buyer in writing and shall disclose only that portion of such information that such Seller is advised by its counsel is legally required to be disclosed, provided that such Seller shall use reasonable best efforts to obtain an appropriate protective order or other reasonable assurance that confidential treatment will be accorded such information. (b) Each Seller agrees that for a period commencing on the Effective Date and ending two years after the Closing Date (the “Non-Compete Period”), it shall not, other than solely through its direct or indirect ownership of Buyer’s capital stock or any other interests in Buyer, directly, or indirectly, including through or on behalf of a subsidiary, anywhere in the world, excluding India: (i) own, manage, operate or control any business which competes with any Combined Business or (ii) be or become a shareholder, partner, member or owner of any Person who is engaged in any Combined Business; provided, however that nothing in this Agreement shall: (i) prohibit or restrict any Seller, directly or indirectly, from owning, as a passive investor, not more than five (5%) percent collectively and in the aggregate of any class of outstanding publicly traded securities of any Person so engaged; (ii) prohibit or restrict any Seller, directly or indirectly, from engaging in such Seller’s business as conducted on the Effective Date and reasonable extensions thereof, which may include routine, day-to-day transactions with any entity, and (iii) apply to or restrict any business of which a Seller acquires control after the Effective Date provided that the acquired business did not receive more than $25,000,000 of its aggregate net sales (as measured during the 12 full calendar months prior to such acquisition) from product lines included within the definition of Company Business. Each Seller agrees that this covenant is reasonable with respect to its duration, geographical area and scope. For purposes of this Agreement, the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. (c) Gulf Oil and Gulf India each agree during the Non-Compete Period not to acquire, directly or indirectly, control of any businesses involved in, or otherwise competing with, the business of the Combined Business from any entity on Schedule 1 hereto. (d) Each Seller agrees that for a period commencing on the Effective Date and ending three years after the Closing Date (the “Non-Solicit Period”), each Seller shall not, directly or indirectly: (i) induce, solicit, recruit or attempt to persuade any employee of the Combined Business to terminate his or her employment with the Buyer or any of its subsidiaries, or (ii) solicit the employment of any of the employees of the Combined Business. Notwithstanding the above, Sellers shall not be restricted from (1) soliciting for employment or hiring former employees of Buyer or the Company (including their respective subsidiaries) whose employment was terminated by Buyer or the Company (including their respective subsidiaries) at least six months prior to such initial solicitation by such Seller or (2) soliciting employees of the Combined Business by means of a general solicitation through a public medium or general or mass mailing that is not specifically targeted at employees or former employees of the Combined Business; provided, however, that this clause (2) shall not permit any Seller to hire any such employees during the Non-Solicit Period. (e) It is the intention of the parties that the covenants contained in this Section 1 shall be enforced to the greatest extent (but to no greater extent) in time, area and degree of participation as is permitted by the Law of that jurisdiction whose Law is applicable to any acts allegedly in breach of such covenants. To this end, the parties agree that the covenants contained in this Section 1 shall be construed to extend in time and territory and with respect to degree of participation only so far as they may be enforced in such jurisdiction, and that the covenants contained in this Section 1 are to that end hereby declared divisible and severable. It being the purpose of this Section 1 to govern competition by the Sellers and their respective subsidiaries, the non-competition covenants contained in this Section 1 shall be governed by and construed according to the Law of all the jurisdictions in which competition in breach of this Agreement is alleged to have occurred or to be threatened that best gives them effect.
Appears in 3 contracts
Samples: Non Competition and Non Solicitation Agreement (Quaker Chemical Corp), Share Purchase Agreement (Quaker Chemical Corp), Non Competition and Non Solicitation Agreement
Confidentiality Non Competition Non Solicitation. (a) From Each Seller and after the date hereof, each Rentassured Seller shall, and shall cause its Affiliates to, hold, and shall use its reasonable best efforts to cause its or their respective Representatives to hold, hold in confidence any and at all information, whether written or oral, concerning Buyer, the Company and the Company Subsidiaries, except to the extent that such Seller can show that such information: (i) is generally available to and known by the public through no fault of any Seller or any of their respective Affiliates or Representatives or (ii) is lawfully acquired by such Seller, any of its Affiliates or their respective Representatives from and times after the date hereof from sources that are not prohibited from disclosing such information by a legalall Proprietary Information, contractual or fiduciary obligation. If any Seller or any of its Affiliates or their respective Representatives are compelled to disclose any information by judicial or administrative process or by other requirements of Law, such Seller shall promptly notify Buyer in writing and shall disclose only that portion not disclose, publish or make use of such Proprietary Information at any time after the date hereof without the prior written consent of Buyer. Notwithstanding the foregoing, the confidentiality obligations of this Section 6.02(a) shall not apply to information that such Seller is advised by its counsel is legally required to be disclosed, disclosed pursuant to an order of a judicial authority or Governmental Entity having competent jurisdiction (provided that such Seller shall use if legally permitted provides Buyer with reasonable best efforts prior written notice thereof) or can be shown to obtain an appropriate protective order or have been generally available to the public at the time of disclosure to such Seller other reasonable assurance that confidential treatment will be accorded such informationthan as a result of a breach of this Section 6.02(a).
(b) Each Seller agrees Management Shareholder hereby acknowledges that for a period commencing on the Effective Date Business of the Company and ending two years after its Subsidiaries is conducted throughout the Closing Date (Territory. Each Management Shareholder acknowledges that to protect adequately the “interest of Buyer in the Business and its assets, it is essential that any noncompetition and nonsolicitation covenant with respect thereto cover all of the Business and the entire Territory. No Management Shareholder nor any of his or her Affiliates shall, during the Non-Compete Period”), it shall notin any manner, directly or indirectly or by assisting others, engage in business with, have an equity or profit interest in or render services of any kind (including of an executive, marketing, sales, manufacturing, research and development, administrative, financial, independent contractor or consulting nature) to any Person (other than solely through to the Company and its direct Affiliates) that engages in the Business in the Territory.
(c) No Management Shareholder nor any of his or indirect ownership of Buyer’s capital stock her Affiliates shall, during the Non-Compete Period, in any manner, directly or indirectly or by assisting any other interests in BuyerPerson, directlyrecruit or hire away or attempt to recruit or hire away, or indirectly, including through on any of their behalves or on behalf of a subsidiaryany other Person, anywhere in any employee of the world, excluding India: (i) own, manage, operate Company or control any business which competes of its Subsidiaries with any Combined Business or (ii) be or become a shareholder, partner, member or owner of any Person who is engaged in any Combined respect to the Business; provided, however that nothing in this Agreement shall:.
(id) prohibit No Management Shareholder nor any of his or restrict any Sellerher Affiliates shall during the Non-Compete Period, directly or indirectly, from owningeither individually, as a passive investorin partnership, not more jointly, or in conjunction with, or on behalf of, any Person, other than five (5%) percent collectively and in for the aggregate direct benefit of any class of outstanding publicly traded securities of any Person so engaged;
(ii) prohibit or restrict any Seller, directly or indirectly, from engaging in such Seller’s business as conducted on the Effective Date and reasonable extensions thereof, which may include routine, day-to-day transactions with any entity, and
(iii) apply to or restrict any business of which a Seller acquires control after the Effective Date provided that the acquired business did not receive more than $25,000,000 of its aggregate net sales (as measured during the 12 full calendar months prior to such acquisition) from product lines included within the definition of Company Business. Each Seller agrees that this covenant is reasonable with respect to its duration, geographical area and scope. For purposes of this AgreementBuyer, the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly Company or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
(c) Gulf Oil and Gulf India each agree during the Non-Compete Period not to acquire, directly or indirectly, control of any businesses involved in, or otherwise competing with, the business of the Combined Business from any entity on Schedule 1 hereto.
(d) Each Seller agrees that for a period commencing on the Effective Date and ending three years after the Closing Date (the “Non-Solicit Period”), each Seller shall not, directly or indirectlytheir Affiliates: (i) induce, solicit, recruit solicit or attempt to persuade contact any employee customers of the Combined Business to terminate his Company or her employment with its Subsidiaries that are located within the Buyer Territory (including actively sought prospective customers) for the purpose of providing services or any of its subsidiariesproducts within the Territory the same as, or substantially similar to, those provided by Buyer, the Company or their Affiliates; (ii) solicit the employment of solicit, induce or encourage any customer of the employees of Company or its Subsidiaries that is located within the Combined Business. Notwithstanding the above, Sellers shall not be restricted from (1) soliciting for employment Territory to terminate or hiring former employees of Buyer or modify any business relationship with the Company (including their respective subsidiaries) whose employment was terminated by Buyer or the Company (including their respective subsidiaries) at least six months prior to such initial solicitation by such Seller or (2) soliciting employees of the Combined Business by means of a general solicitation through a public medium or general or mass mailing that is not specifically targeted at employees or former employees of the Combined Business; provided, however, that this clause (2) shall not permit any Seller to hire any such employees during the Non-Solicit Periodits Subsidiaries.
(e) It In the event a judicial or arbitral determination is the intention made that any of the provisions of this Section 6.02 constitutes an unreasonable or otherwise unenforceable restriction against any Management Shareholder or any Affiliate of any Management Shareholder, the provisions of this Section 6.02 shall be rendered void only to the extent that such judicial or arbitral determination finds such provisions to be unreasonable or otherwise unenforceable with respect to such Management Shareholder or such Affiliate of Management Shareholder. In this regard, the parties hereby agree that any judicial authority construing this Agreement shall be empowered to sever any portion of the covenants Territory, any prohibited business activity or any time period from the coverage of this Section 6.02 and to apply the provisions of this Section 6.02 to the remaining portion of the Territory, the remaining business activities and the remaining time period not so severed by such judicial or arbitral authority. Moreover, notwithstanding the fact that any provision of this Section 6.02 is determined not to be specifically enforceable, Buyer shall nevertheless be entitled to seek monetary damages as a result of the breach of such provision by any Management Shareholder or any Affiliate of any Management Shareholder. The time period during which the prohibitions set forth in this Section 6.02 shall apply shall be tolled and suspended for a period equal to the aggregate time during which any Management Shareholder or any Affiliate of any Management Shareholder violates such prohibitions in any respect.
(f) Any remedy at law for any breach of the provisions contained in this Section 1 6.02 shall be enforced inadequate and Buyer shall be entitled to the greatest extent (but to no greater extent) equitable relief, including, without limitation, injunctive relief, in time, area and degree of participation as is permitted by the Law of that jurisdiction whose Law is applicable addition to any acts allegedly in breach of such covenants. To other remedy Buyer might have under this end, the parties agree that the covenants contained in this Section 1 shall be construed to extend in time and territory and with respect to degree of participation only so far as they may be enforced in such jurisdiction, and that the covenants contained in this Section 1 are to that end hereby declared divisible and severable. It being the purpose of this Section 1 to govern competition by the Sellers and their respective subsidiaries, the non-competition covenants contained in this Section 1 shall be governed by and construed according to the Law of all the jurisdictions in which competition in breach of this Agreement is alleged to have occurred or to be threatened that best gives them effectAgreement.
Appears in 2 contracts
Samples: Share Purchase Agreement (Purpose Financial Holdings, Inc.), Share Purchase Agreement (Purpose Financial Holdings, Inc.)
Confidentiality Non Competition Non Solicitation. (a) From You hereby agree and after ------------------------------------------------ acknowledge the date hereof, each Seller shall, and shall cause its Affiliates to, hold, and shall use its reasonable best efforts to cause its or their respective Representatives to hold, in confidence any and all information, whether written or oral, concerning Buyer, the Company and the Company Subsidiaries, except to the extent that such Seller can show that such information: (i) is generally available to and known by the public through no fault of any Seller or any of their respective Affiliates or Representatives or (ii) is lawfully acquired by such Seller, any of its Affiliates or their respective Representatives from and after the date hereof from sources that are not prohibited from disclosing such information by a legal, contractual or fiduciary obligation. If any Seller or any of its Affiliates or their respective Representatives are compelled to disclose any information by judicial or administrative process or by other requirements of Law, such Seller shall promptly notify Buyer in writing and shall disclose only that portion of such information that such Seller is advised by its counsel is legally required to be disclosed, provided that such Seller shall use reasonable best efforts to obtain an appropriate protective order or other reasonable assurance that confidential treatment will be accorded such information.
(b) Each Seller agrees that for a period commencing on the Effective Date and ending two years after the Closing Date (the “Non-Compete Period”), it shall not, other than solely through its direct or indirect ownership of Buyer’s capital stock or any other interests in Buyer, directly, or indirectly, including through or on behalf of a subsidiary, anywhere in the world, excluding India: (i) own, manage, operate or control any business which competes with any Combined Business or (ii) be or become a shareholder, partner, member or owner of any Person who is engaged in any Combined Business; provided, however that nothing in this Agreement shallfollowing:
(i) prohibit or restrict that you shall abide by any Sellerand all common law and/or statutory obligations relating to protection and non-disclosure of Number Nine's trade secrets and/or confidential and proprietary documents and information (including, directly or indirectlybut not limited to, from owningany information regarding Number Nine's financial conditions, as a passive investorproducts, not more than five (5%) percent collectively product development, sales and any other similar information, but excluding information that is publicly available, and that you have and shall continue to abide by the convenants set forth in the aggregate of any class of outstanding publicly traded securities of any Person so engaged;"Noncompete and Confidentiality Agreement" dated May 15, 1996 (which agreement is attached hereto as Exhibit A and incorporated herein by reference).
(ii) prohibit that all information relating in any way to the subject matter of this Agreement, including the terms and amount of this Agreement, shall be held confidential by you and shall not be publicized or restrict disclosed to any Sellerperson (other than an immediate family member, directly legal counsel or indirectlyfinancial advisor, from engaging in provided that any such Seller’s individual to whom disclosure is made agrees to be bound by these confidentiality obligations), business entity or government agency (except as conducted on the Effective Date and reasonable extensions thereof, which may include routine, day-to-day transactions with any entity, andmandated by state or federal law).
(iii) apply that you shall not make any statements that are disparaging about or adverse to the business interests of Number Nine (including its officers, directors and employees) or restrict which are intended to harm the reputation of Number Nine including, but not limited to, any statements that disparage any product, service, finances, financial condition, capability or any other aspect of the business of which a Seller acquires control after the Effective Date provided that the acquired business did not receive more than $25,000,000 of its aggregate net sales (as measured during the 12 full calendar months prior to such acquisition) from product lines included within the definition of Company Business. Each Seller agrees that this covenant is reasonable with respect to its duration, geographical area and scope. For purposes of this Agreement, the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwiseNumber Nine.
(civ) Gulf Oil and Gulf India each agree during that the Non-Compete Period not to acquire, directly or indirectly, control of any businesses involved in, or otherwise competing with, the business of the Combined Business from any entity on Schedule 1 hereto.
(d) Each Seller agrees that for a period commencing on the Effective Date and ending three years after the Closing Date (the “Non-Solicit Period”), each Seller shall not, directly or indirectly: (i) induce, solicit, recruit or attempt to persuade any employee of the Combined Business to terminate his or her employment with the Buyer or any of its subsidiaries, or (ii) solicit the employment breach of any of the employees of the Combined Business. Notwithstanding the above, Sellers foregoing covenants by you shall not be restricted from (1) soliciting for employment or hiring former employees of Buyer or the Company (including their respective subsidiaries) whose employment was terminated by Buyer or the Company (including their respective subsidiaries) at least six months prior to such initial solicitation by such Seller or (2) soliciting employees of the Combined Business by means of constitute a general solicitation through a public medium or general or mass mailing that is not specifically targeted at employees or former employees of the Combined Business; provided, however, that this clause (2) shall not permit any Seller to hire any such employees during the Non-Solicit Period.
(e) It is the intention of the parties that the covenants contained in this Section 1 shall be enforced to the greatest extent (but to no greater extent) in time, area and degree of participation as is permitted by the Law of that jurisdiction whose Law is applicable to any acts allegedly in breach of such covenants. To this end, the parties agree that the covenants contained in this Section 1 shall be construed to extend in time and territory and with respect to degree of participation only so far as they may be enforced in such jurisdiction, and that the covenants contained in this Section 1 are to that end hereby declared divisible and severable. It being the purpose of this Section 1 to govern competition by the Sellers and their respective subsidiaries, the non-competition covenants contained in this Section 1 shall be governed by and construed according to the Law of all the jurisdictions in which competition in material breach of this Agreement is alleged and shall relieve Number Nine of any further obligations hereunder and, in addition to have occurred any other legal or equitable remedy available to be threatened that best gives them effectNumber Nine, shall entitle Number Nine to recover any monies already paid to you pursuant to paragraph 2 of this Agreement.
Appears in 2 contracts
Samples: Severance Agreement (Number Nine Visual Technology Corp), Separation Agreement (Number Nine Visual Technology Corp)
Confidentiality Non Competition Non Solicitation. (a) From Employee acknowledges that the Employer Entities’ business and services are highly specialized and that the following information which he does have or has had access to is not generally known, is highly confidential and constitutes trade secrets: proprietary technical and business information relating to any Employer Entity’s plans, analysis or strategies concerning international or domestic acquisitions, possible acquisitions or new ventures; development plans or introduction plans for products or services; unannounced products or services; operation costs; pricing of products or services; research and development; personnel information; manufacturing processes; installation, service and distribution procedures and processes; customer lists; any know-how relating to the design, manufacture, and marketing of the Employer Entities’ services and products, including components and parts thereof; non-public information acquired by Employee concerning the requirements and specifications of any Employer Entity’s agents, vendors, contractors, customers and potential customers; non-public financial information, business and marketing plans, pricing and price lists; non-public matters relating to employee benefit plans; quotations or proposals given to agents or customers or received from suppliers; any other information which is sufficiently secret to derive economic value from not being generally known.
(b) Prior to, and at any time on or after the date hereofRetirement Date, each Seller shallEmployee shall maintain in the strictest confidence and will not, and shall cause its Affiliates todirectly or indirectly, holduse, and shall use its reasonable best efforts intentionally or inadvertently publish or otherwise disclose to cause its any third party person or their respective Representatives entity, any trade secrets, or any confidential, proprietary or other non-public information of or belonging to holdany Employer Entity or any agent, in confidence joint venturer, contractor, customer, vendor or supplier of any and all information, whether written or oral, concerning BuyerEmployer Entity (collectively, the Company and “Confidential Information”), regardless of its form, without the Company Subsidiaries, except prior written explicit consent of the General Counsel of Tenneco Inc. Employee shall take reasonable precautions to protect against the extent inadvertent disclosure of Confidential Information. The foregoing shall not apply to information that such Seller can show that such information: (i) is generally available was known to and known by the public through no fault of any Seller or any of their respective Affiliates or Representatives or prior to its disclosure to Employee; (ii) is lawfully acquired was known to Employee prior to the commencement of Employee’s employment by such Seller, any the Employer Entities; (iii) becomes publicly known or available to the public subsequent to disclosure to Employee through no breach of its Affiliates or their respective Representatives from and after the date hereof from sources that are not prohibited from disclosing such information by a legal, contractual or fiduciary obligation. If any Seller Employee or any representative of its Affiliates Employee; or their respective Representatives are compelled (iv) Employee is required to disclose by applicable law, regulation or legal process. Notwithstanding the foregoing, should Employee be served with legal process seeking to compel disclosure of any information by judicial or administrative process or by other requirements such information, Employee shall notify the General Counsel of Law, such Seller shall promptly notify Buyer in writing Employer immediately and shall disclose only that portion of such information that such Seller is advised by cooperate with Employer at its counsel is legally required to be disclosed, provided that such Seller shall use reasonable best efforts to obtain an appropriate expense in seeking a protective order or other reasonable assurance that confidential treatment will be accorded appropriate protection of such information.
(bc) Each Seller Employee further acknowledges that (i) Employer and Employer Entities expend significant resources to develop and maintain their customers and train their employees, that these customer and employment relationships are long-standing and have been developed and maintained over a period of many years, that the Employer Entities alone placed Employee in a position to interact with their long-standing clients and employees, and that the Employer Entities would be irreparably harmed if their customer and employment relationships were destroyed or tampered with because such relationships are a significant asset of the Employer Entities, (ii) Employee performed services of a unique nature for Employer that will be irreplaceable, and that Employee’s performance of such services to a competing business will result in irreparable harm to the Employer Entities, (iii) Employee has had access to Confidential Information which, if disclosed, would unfairly and inappropriately assist in competition against the Employer Entities, and (iv) Employee generated goodwill for the Employer Entities in the course of Employee’s employment.
(d) Employee further acknowledges that Employee inevitably would disclose Confidential Information, including trade secret information, should Employee serve as director, officer, manager, supervisor, consultant, independent contractor, owner of greater than 1% of the stock, representative, agent, or employee (where Employee’s duties as an employee would involve any level of strategic, advisory, technical, creative, marketing, sales, or other similar input) for any competitor of Employer or any other Employer Entity involved in the vehicle or vehicle parts businesses in the areas of emissions treatment, exhaust, ride control, and/or elastomers during the Restricted Period (as defined below).
(e) In light of Employee’s acknowledgments regarding Confidential Information, customer relationships, and inevitable disclosure set forth above, in order to protect the Employer’s legitimate business interests described herein, and as additional consideration in return for the payments and benefits described in Paragraph 2 of this Agreement, including Schedule A, Employee agrees that that, for a period commencing on the Effective Date through and ending two years after the Closing Date including March 31, 2016 (the “Non-Compete Restricted Period”), it ):
(i) Employee shall not, other than solely through its direct or indirect ownership without Employer’s express, written consent (to be provided by the General Counsel of BuyerTenneco Inc., which approval may be withheld in Employer’s capital stock or any other interests in Buyersole discretion), directly, directly or indirectly, including through whether individually or for or on behalf of any other individual, business, or entity, serve as director, officer, manager, supervisor, owner or shareholder (of other than a subsidiarypassive investment of less than 1% of the individual’s, anywhere business’, or entity’s outstanding publicly-traded stock), consultant, independent contractor, representative, agent, or employee (where Employee’s duties would include any level of strategic, advisory, technical, creative, marketing, sales, or other similar input) for, or otherwise render services to, any individual, business, or other entity that designs, manufactures, or supplies vehicle parts in the worldareas of emissions treatment, excluding India: exhaust, ride control and/or elastomers, or any other products which perform the same or similar function as those manufactured, marketed, sold, supplied, or distributed by Employer Entities in the vehicle or vehicle parts businesses (i) own“Products”), managein any market in which Employer or any Employer Entity manufactures, operate markets, sells, supplies, or control distributes such Products as of the Retirement Date or as of any business which competes with any Combined Business or time within the twelve (12)-month period preceding the Retirement Date; and
(ii) be Employee shall not, in any capacity, whether on Employee’s behalf or become a shareholder, partner, member or owner on behalf of any Person who is engaged other individual, business or entity, for purposes of selling, marketing, or attempting to sell or market any Product, solicit any customer of any Employer Entity with or for whom Employee had contact, communication, or other interaction of any kind, at any point within the two-year period preceding the Retirement Date.
(f) Additionally, in any Combined Business; providedlight of Employee’s acknowledgments regarding Confidential Information, however that nothing in order to protect the Employer’s legitimate business interests described herein, and as additional consideration in return for the payments and benefits described in Paragraph 2 of this Agreement shallAgreement, including Schedule A, Employee agrees that, for a period through and including March 31, 2017:
(i) prohibit or restrict Employee shall refrain from contacting any Seller, directly or indirectly, from owning, as a passive investor, not more than five (5%) percent collectively and in the aggregate employee of any class Employer Entity for purposes of outstanding publicly traded securities of recruiting or placing such individual with another employer or influencing such individual to terminate employment with any Person so engagedEmployer Entity;
(ii) prohibit In the event that an employee of an Employer Entity contacts Employee in contemplation or restrict for the purpose of seeking employment with another employer or terminating employment with such Employer Entity, Employee shall not enter into any Sellerdiscussions with such employee regarding that matter without prior written approval of Employer, directly or indirectly, from engaging in such Seller’s business as conducted on to be provided by the Effective Date and reasonable extensions thereofGeneral Counsel of Tenneco Inc., which approval may include routinebe withheld in Employer’s sole discretion. Notwithstanding the foregoing, day-to-day transactions (x) Employee may serve as a reference for such employee of an Employer Entity, upon the request of any such employee, without prior written approval of Employer and (y) Employee may provide general advice to any such employee of an Employer Entity without prior written approval of Employer, provided that Employee shall not interfere with or induce any entity, other person or entity to interfere with the relationship between the Employer Entity and any of the employees of an Employer Entity; and
(iii) apply Furthermore, Employee may not directly or indirectly extend an offer of employment or cause an offer of employment to be extended to an employee or restrict any business of which a Seller acquires control after the Effective Date provided that the acquired business did not receive more than $25,000,000 of its aggregate net sales (as measured during the 12 full calendar months prior to such acquisition) from product lines included person who within the definition ninety (90) days preceding the extension of Company Business. Each Seller agrees that this covenant is reasonable with respect to its duration, geographical area and scope. For purposes of this Agreement, the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
(c) Gulf Oil and Gulf India each agree during the Non-Compete Period not to acquire, directly or indirectly, control of any businesses involved in, or otherwise competing with, the business of the Combined Business from any entity on Schedule 1 hereto.
(d) Each Seller agrees that for a period commencing on the Effective Date and ending three years after the Closing Date (the “Non-Solicit Period”), each Seller shall not, directly or indirectly: (i) induce, solicit, recruit or attempt to persuade any such offer was an employee of an Employer Entity without the Combined Business prior written approval of Employer, to terminate his or her employment with the Buyer or any of its subsidiaries, or (ii) solicit the employment of any of the employees of the Combined Business. Notwithstanding the above, Sellers shall not be restricted from (1) soliciting for employment or hiring former employees of Buyer or the Company (including their respective subsidiaries) whose employment was terminated by Buyer or the Company (including their respective subsidiaries) at least six months prior to such initial solicitation by such Seller or (2) soliciting employees of the Combined Business by means of a general solicitation through a public medium or general or mass mailing that is not specifically targeted at employees or former employees of the Combined Business; provided, however, that this clause (2) shall not permit any Seller to hire any such employees during the Non-Solicit Period.
(e) It is the intention of the parties that the covenants contained in this Section 1 shall be enforced to the greatest extent (but to no greater extent) in time, area and degree of participation as is permitted provided by the Law General Counsel of that jurisdiction whose Law is applicable to any acts allegedly in breach of such covenants. To this endTenneco Inc., the parties agree that the covenants contained in this Section 1 shall be construed to extend in time and territory and with respect to degree of participation only so far as they which approval may be enforced withheld in such jurisdiction, and that the covenants contained in this Section 1 are to that end hereby declared divisible and severable. It being the purpose of this Section 1 to govern competition by the Sellers and their respective subsidiaries, the non-competition covenants contained in this Section 1 shall be governed by and construed according to the Law of all the jurisdictions in which competition in breach of this Agreement is alleged to have occurred or to be threatened that best gives them effectEmployer’s sole discretion.
Appears in 1 contract
Samples: Retirement Agreement (Tenneco Inc)
Confidentiality Non Competition Non Solicitation. In further consideration for the payment of the Purchase Price and to protect the value of the Purchased Assets purchased by Xxxxx (including the goodwill inherent in the Business as of the Effective Time), and as a material inducement to Buyer and each Seller to enter into and perform their respective obligations under this Agreement, effective as of the Effective Time, each Seller and Buyer agree as follows:
(a) From No Seller shall use for itself or any other Person, or disclose to any other Person, any Confidential Information included in the Purchased Assets, except to the extent such use or disclosure is (i) approved in writing in advance by Buyer or its designated Affiliate, (ii) expressly permitted or required pursuant to the terms of this Agreement, or (iii) required by applicable Law or any Order, including as required under the Chapter 11 Cases (in which event, to the extent legally permissible, any Seller shall inform Buyer in advance of any such required disclosure, shall cooperate with Buyer in all reasonable respects in obtaining a protective Order or other protection in respect of such required disclosure (at the sole cost and after expense of Buyer) and shall limit such disclosure to the date hereofextent reasonably possible while still complying with such requirements). Each Seller shall use commercially reasonable efforts to safeguard Confidential Information included in the Purchased Assets and to protect it against disclosure, misuse, espionage, loss and theft. For the avoidance of doubt, any Party may disclose Confidential Information received from any other Party in an action or Proceeding brought by a Party in pursuit of its rights or in exercise of its remedies hereunder.
(b) Buyer shall not use for itself or any other Person, or disclose to any other Person, any Confidential Information included in the Excluded Assets, except to the extent such use or disclosure is (i) approved in writing in advance by any Seller, (ii) expressly permitted or required pursuant to the terms of this Agreement, or (iii) required by applicable Law or any Order (in which event, to the extent legally permissible, Buyer shall inform any Seller in advance of any such required disclosure, shall cooperate with any Seller in all reasonable respects in obtaining a protective Order or other protection in respect of such required disclosure (at the sole cost and expense of each Seller) and shall limit such disclosure to the extent reasonably possible while still complying with such requirements). Buyer shall use commercially reasonable efforts to safeguard Confidential Information included in the Excluded Assets and to protect it against disclosure, misuse, espionage, loss and theft.
(c) Each Seller acknowledges that each Seller has become, and following the Execution Date shall continue to be, familiar with Confidential Information included in the Purchased Assets. Therefore, during the Restricted Period, no Seller shall (and shall not take any steps to, or prepare to), and shall not cause the Seller Affiliates to, directly or indirectly, in any capacity, engage in a Restricted Business within the Restricted Area.
(d) During the Restricted Period, no Seller shall, and shall cause its the Seller Affiliates not to, hold, and shall use its reasonable best efforts to cause its directly or their respective Representatives to holdindirectly, in confidence any and all informationcapacity, whether written encourage, induce, solicit or oralattempt to encourage, concerning Buyer, the Company and the Company Subsidiaries, except to the extent that such Seller can show that such information: induce or solicit (i) any officer, director, manager, employee or independent contractor of Buyer Employer who primarily provides services to the Business and works and resides in the Restricted Area or who has been introduced to any Seller and Seller Affiliates through the negotiation of this Agreement and the Contemplated Transactions or (ii) any Transferred Employee to leave the employ of Buyer Employer or any of Buyer Employer’s Affiliates or terminate any relationship with Buyer Employer or any of Buyer Employer’s Affiliates; provided that the foregoing shall not apply to (A) any direct or indirect general solicitation by any Seller or any Seller Affiliate that is generally available not directed specifically to any such Person or (B) any such Person whose employment has been terminated by such Person or by any Buyer Employer or any of Buyer Employer’s Affiliates for a period of six (6) months or more.
(e) From the Execution Date until the earlier of the Effective Time or the date of termination of this Agreement, Buyer will not, and known by will cause its Affiliates not to, directly or indirectly, in any capacity, encourage, induce, solicit or attempt to encourage, induce or solicit (i) any officer, director, manager, employee or independent contractor of any Seller or any Seller Affiliate (other than the public through no fault Transferred Employees), (ii) any Retained Employee, or (iii) any Physician or other provider employee (other than Physicians or providers who will be the subject of the Employee Contract Assignment and Assumption Agreement) in each case ((i) – (iii)) in the Restricted Area of any Seller or any of their its respective Affiliates or Representatives or (ii) is lawfully acquired by such Seller, any to leave the employ of its Affiliates or their respective Representatives from and after the date hereof from sources that are not prohibited from disclosing such information by a legal, contractual or fiduciary obligation. If any Seller or any of its respective Affiliates or their terminate any relationship with any Seller or any of its respective Representatives are compelled Affiliates; provided that the foregoing shall not apply to disclose (A) any information direct or indirect general solicitation that is not directed specifically to any such Person, or (B) any such Person whose employment has been terminated by judicial or administrative process such Person or by other requirements any Seller or any of Lawits respective Affiliates for a period of thirty (30) days or more. Notwithstanding the foregoing, such Seller this Agreement shall promptly notify Buyer in writing and shall disclose only that portion of such information that such Seller is advised by its counsel is legally required to be disclosed, provided that such Seller shall use reasonable best efforts to obtain an appropriate protective order or other reasonable assurance that confidential treatment will be accorded such informationsupersede the Confidentiality Agreement.
(bf) Each Seller agrees and Buyer recognizes that the covenants in this Section 6.3, and the territorial, time and other limitations with respect thereto, are reasonable and properly required for a period commencing on the Effective Date adequate protection of each Seller and ending two years after Buyer and the Closing Date acquisition of the Purchased Assets by Buyer, including the Confidential Information (whether included in the “Non-Compete Period”Purchased Assets or Excluded Assets), it shall not, other than solely through its direct or indirect ownership of and agree and acknowledge that such limitations are reasonable with respect to Buyer’s capital stock or any other interests in Buyerand Sellers’ activities, directly, or indirectly, including through or on behalf of a subsidiary, anywhere in the world, excluding Indiabusiness and public purpose. Sellers and Buyer acknowledge and represent that: (i) ownsufficient consideration has been given by each Party to the other as it relates to the covenants set forth in this Section 6.3; (ii) the restrictions and agreements in this Section 6.3 are reasonable in all respects and necessary for the protection of either (A) Buyer and its Affiliates, manage, operate or control any business which competes the Confidential Information included in the Purchased Assets and the goodwill primarily associated with any Combined the Business or (iiB) be Sellers or become a shareholder, partner, member or owner of any Person who is engaged the Seller Affiliates and the Confidential Information included in any Combined Business; provided, however that nothing in this Agreement shall:
(i) prohibit or restrict any Seller, directly or indirectly, from owningthe Excluded Assets, as a passive investor, not more than five (5%) percent collectively and in the aggregate of any class of outstanding publicly traded securities of any Person so engaged;
(ii) prohibit or restrict any Seller, directly or indirectly, from engaging in such Seller’s business as conducted on the Effective Date and reasonable extensions thereof, which case may include routine, day-to-day transactions with any entity, and
(iii) apply to or restrict any business of which a Seller acquires control after the Effective Date provided that the acquired business did not receive more than $25,000,000 of its aggregate net sales (as measured during the 12 full calendar months prior to such acquisition) from product lines included within the definition of Company Business. Each Seller agrees that this covenant is reasonable with respect to its duration, geographical area and scope. For purposes of this Agreement, the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
(c) Gulf Oil and Gulf India each agree during the Non-Compete Period not to acquire, directly or indirectly, control of any businesses involved in, or otherwise competing with, the business of the Combined Business from any entity on Schedule 1 hereto.
(d) Each Seller agrees that for a period commencing on the Effective Date and ending three years after the Closing Date (the “Non-Solicit Period”), each Seller shall not, directly or indirectly: (i) induce, solicit, recruit or attempt to persuade any employee of the Combined Business to terminate his or her employment with the Buyer or any of its subsidiaries, or (ii) solicit the employment of any of the employees of the Combined Business. Notwithstanding the above, Sellers shall not be restricted from (1) soliciting for employment or hiring former employees of Buyer or the Company (including their respective subsidiaries) whose employment was terminated by Buyer or the Company (including their respective subsidiaries) at least six months prior to such initial solicitation by such Seller or (2) soliciting employees of the Combined Business by means of a general solicitation through a public medium or general or mass mailing that is not specifically targeted at employees or former employees of the Combined Business; provided, however, that this clause (2) shall not permit any Seller to hire any such employees during the Non-Solicit Period.
(e) It is the intention of the parties that the covenants contained in this Section 1 shall be enforced to the greatest extent (but to no greater extent) in time, area and degree of participation as is permitted by the Law of that jurisdiction whose Law is applicable to any acts allegedly in breach of such covenants. To this end, the parties agree that the covenants contained in this Section 1 shall be construed to extend in time and territory and with respect to degree of participation only so far as they may be enforced in such jurisdictionbe, and that the covenants contained in this Section 1 are to that end hereby declared divisible and severable. It being the purpose of this Section 1 to govern competition by the Sellers and their respective subsidiarieseach case, the non-competition covenants contained in this Section 1 shall without such protection, Buyer’s or Sellers’ competitive advantage would be governed by and construed according to the Law of all the jurisdictions in which competition in breach of this Agreement is alleged to have occurred or to be threatened that best gives them effect.materially adversely affected; and
Appears in 1 contract
Samples: Asset Purchase Agreement
Confidentiality Non Competition Non Solicitation. (a) From The Consultant acknowledges that: (i) the Consultant’s service to the Company will require that the Consultant have access to and after knowledge of confidential information of the date hereofCompany relating to the Business, each Seller shallincluding, but not limited to, the identity of the Company’s employees, clients, customers, the kinds of services provided by the Company, the manner in which such services are performed or offered to be performed, the service needs of actual or prospective clients and customers, pricing information and other contractual terms, information concerning the creation, acquisition or disposition of products and services, creative ideas and concepts, and shall cause its Affiliates to, hold, and shall use its reasonable best efforts to cause its or their respective Representatives to holdother trade secrets, in confidence each case other than as and to the extent such information is generally known or publicly available through no violation of this Section 8 by the Consultant or such information is readily discernible (the “Confidential Information”); and (ii) the disclosure of any such Confidential Information may place the Company at a competitive disadvantage and all informationmay do damage, whether written monetary or oralotherwise, concerning Buyerto the Company’s business. Accordingly, the Company and the Company Subsidiaries, except to the extent that such Seller can show that such information: Consultant agree as follows:
(i) is generally available to During the Term and known by thereafter, the public through no fault Consultant shall not, directly or indirectly, whether individually, as a director, stockholder, owner, partner, employee, principal or agent of any Seller business, or in any other capacity, disclose, furnish, make available or utilize any of their respective Affiliates the Confidential Information, other than in the proper performance of the Services contemplated herein, or Representatives as expressly permitted herein, or (ii) is lawfully acquired by such Seller, any of its Affiliates or their respective Representatives from and after the date hereof from sources that are not prohibited from disclosing such information as required by a legalcourt of competent jurisdiction or other administrative or legislative body, contractual or fiduciary obligation. If any Seller or any of its Affiliates or their respective Representatives are compelled to disclose any information by judicial or administrative process or by other requirements of Law, such Seller provided that the Consultant shall promptly notify Buyer in writing and shall disclose only the Company so that portion of such information that such Seller is advised by its counsel is legally required to be disclosed, provided that such Seller shall use reasonable best efforts to obtain an appropriate the Company may seek a protective order or other reasonable assurance that confidential treatment will be accorded appropriate remedy. The Consultant agrees to return all documents or other materials containing Confidential Information, including all photocopies, extracts and summaries thereof, and any such informationinformation stored electronically on tapes, computer disks or in any other manner to the Company at any time upon request by the Company and immediately upon the termination of his service to the Company for any reason.
(bii) Each Seller agrees that for a period commencing on During the Effective Date and ending two years after Term, the Closing Date (Consultant shall not engage in Competition, as defined below, with the “Non-Compete Period”), it shall not, other than solely through Company or its direct or indirect ownership of Buyer’s capital stock or any other interests in Buyer, directly, or indirectly, including through or on behalf of a subsidiary, anywhere subsidiaries in the world, excluding India: (i) own, manage, operate or control any business which competes with any Combined Business or (ii) be or become a shareholder, partner, member or owner of any Person who is engaged Territory unless agreed upon by the parties in any Combined Businesswriting; provided, however that nothing the Company shall not unreasonably withhold its consent to permit Consultant to perform another consulting arrangement or pursue a full-time employment opportunity. For the avoidance of doubt, it shall be deemed reasonable for the Company to withhold, condition or delay its consent to permit Consultant to engage in this Agreement shall:
(i) prohibit or restrict any Seller, directly or indirectly, from owning, as a passive investor, not more than five (5%) percent collectively and in the aggregate of any class of outstanding publicly traded securities of any Person so engaged;
(ii) prohibit or restrict any Seller, directly or indirectly, from engaging in such Seller’s business as conducted on the Effective Date and reasonable extensions thereof, which may include routine, day-to-day transactions Competition with any another entity, and
(iii) apply to only if such entity materially competes with the Company or restrict any business of which a Seller acquires control after its subsidiaries. In the Effective Date provided event that the acquired business did not receive more than $25,000,000 Company agrees to permit Consultant to engage in Competition that requires the full-time attention of its aggregate net sales (as measured during the 12 full calendar months prior Consultant, the consulting engagement between the Company and the Consultant shall terminate; provided, however, that the non-solicitation and confidentiality obligations set forth in Sections 8(a)(i) and 8(b) shall survive for the applicable periods provided for herein and the Consultant shall be entitled to such acquisition) from product lines included within the definition of Company Business. Each Seller agrees that this covenant is reasonable with respect to its duration, geographical area compensation and scopebenefits provided in Section 3(b)(ii). For purposes of this Agreement, “Competition” by the term “control” (including Consultant shall mean the terms “controlled by” and “under common control with”) means the possessionConsultant’s engaging in any activities relating to or otherwise being employed by or acting as a consultant to, directly or indirectlybeing a director, of the power to direct employee, agent, equity holder or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
(c) Gulf Oil and Gulf India each agree during the Non-Compete Period not to acquire, directly or indirectly, control partner of any businesses involved in, or otherwise competing with, entity engaged in the business of banking, wealth advisory services or corporate client services, as conducted by the Combined Business from any entity on Schedule 1 hereto.
Company (d) Each Seller agrees that for a period commencing on the Effective Date and ending three years after the Closing Date (collectively, the “Non-Solicit PeriodBusiness”), each Seller shall notand “Territory” means all states in which Manufacturers and Traders Trust Company or Wilmington Trust, directly N.A. has a branch or indirectly: (i) induce, solicit, recruit or attempt to persuade any employee of office location on the Combined Business to terminate his or her employment with the Buyer or any of its subsidiaries, or (ii) solicit the employment of any of the employees of the Combined Business. Notwithstanding the above, Sellers shall not be restricted from (1) soliciting for employment or hiring former employees of Buyer or the Company (including their respective subsidiaries) whose employment was terminated by Buyer or the Company (including their respective subsidiaries) at least six months prior to such initial solicitation by such Seller or (2) soliciting employees of the Combined Business by means of a general solicitation through a public medium or general or mass mailing that is not specifically targeted at employees or former employees of the Combined Businessdate hereof; provided, however, that it will not be a violation of this clause covenant for the Consultant to become the registered or beneficial owner of less than five percent (25%) shall not permit of any Seller to hire any such employees during the Non-Solicit Period.
(e) It is the intention class of the parties that capital stock of any one or more corporations registered under the covenants contained in this Section 1 shall be enforced to the greatest extent (but to no greater extent) in timeSecurities Exchange Act of 1934, area and degree of participation as is permitted by the Law of that jurisdiction whose Law is applicable to any acts allegedly in breach of such covenants. To this end, the parties agree that the covenants contained in this Section 1 shall be construed to extend in time and territory and with respect to degree of participation only so far as they may be enforced in such jurisdiction, and that the covenants contained in this Section 1 are to that end hereby declared divisible and severable. It being the purpose of this Section 1 to govern competition by the Sellers and their respective subsidiaries, the non-competition covenants contained in this Section 1 shall be governed by and construed according to the Law of all the jurisdictions in which competition in breach of this Agreement is alleged to have occurred or to be threatened that best gives them effectamended.
Appears in 1 contract
Samples: Consulting and Non Competition Agreement (M&t Bank Corp)
Confidentiality Non Competition Non Solicitation. (a) From Each of the Sellers acknowledges that in the course of its ownership of the Purchased Assets and after operation of the date hereofBusiness it has had access to the Confidential Information. Each of the Members also acknowledges that in the course of its ownership of Alliance, each Seller shallsuch Member, together with its Affiliates, has had access to the Confidential Information. Each of the Sellers and Members agrees that it shall not, and shall cause its Affiliates to, hold, and shall use its reasonable best efforts to cause its not authorize or permit any of their respective Representatives Affiliates, directly or indirectly, at any time, to hold, in confidence disclose any and all information, whether written Confidential Information to any other Person or oral, concerning Buyer, the Company and the Company Subsidiaries, except to use any Confidential Information to the extent detriment of the Buyer; provided, however, that for purposes of this Section 6.3(a), Confidential Information shall not be deemed to include such Seller can show that such information: (i) information as is generally available to and known by the public or the industry through no fault of any Seller the Sellers, Members or any of their respective Affiliates in breach of the terms hereof; provided, further, that this Section 6.3(a) shall not prevent the disclosure of Confidential Information by the Sellers or Representatives Members to the extent required in any proceeding between the parties hereto; and, provided further, that this Section 6.3 shall not restrict Savage or (ii) is lawfully acquired by such Seller, Branch from using or disclosing Confidential Information in the course of employment with Buyer. If any of its Affiliates the Sellers, Members or their respective Representatives from and after the date hereof from sources that are not prohibited from disclosing such information by a legal, contractual or fiduciary obligation. If any Seller or any of its Affiliates or their respective Representatives are is compelled to disclose any information Confidential Information by judicial any legal proceeding or administrative process or by other requirements of Lawthe federal securities laws, such Seller or Member shall promptly notify the Buyer in writing and shall of such required disclosure so that the Buyer may seek, at its sole expense, a protective order or other appropriate remedy. If such protective order or other remedy is not obtained, such Seller or Member agrees to disclose only that portion of such information that such Seller is advised by its counsel the Confidential Information which is legally required to be disclosed, provided that such Seller shall use disclosed and to take all reasonable best efforts steps to obtain an appropriate protective order or other reasonable assurance that confidential treatment will be accorded such informationpreserve the confidentiality of the Confidential Information.
(b) Each Seller of the Sellers and Members agrees that for a it shall not, and shall not permit any of its Affiliates to, at any time during the five-year period commencing on the Effective Date and ending two years after immediately following the Closing Date (the “Non-Compete Restricted Period”) directly or indirectly, either individually or on behalf of, or in partnership or conjunction with, any Person, as owner, officer, manager, director, partner, investor, employee, agent, shareholder (other than as a holder of not more than five percent (5%) of the total outstanding equity securities of a publicly-traded entity) or in any other capacity or manner whatsoever, carry on or engage in the business of providing customized drilling fluids, stimulation products (proppants), other specialty chemicals and fluids, and services related thereto, in the energy industry (the “Competing Business”) in the States of Texas, New Mexico, Kansas, Oklahoma and Wyoming (the “Territory”).
(c) Each of the Sellers and Members agrees that it shall not, other than solely through and shall not permit any of its direct or indirect ownership of Buyer’s capital stock or Affiliates to, at any other interests in Buyer, directly, or indirectly, including through or on behalf of a subsidiary, anywhere in time during the world, excluding India: (i) own, manage, operate or control any business which competes with any Combined Business or (ii) be or become a shareholder, partner, member or owner of any Person who is engaged in any Combined Business; provided, however that nothing in this Agreement shall:
(i) prohibit or restrict any SellerRestricted Period, directly or indirectly, from owningeither individually or on behalf of, or in partnership or conjunction with, any Person, as a passive owner, officer, manager, director, partner, investor, employee, agent, shareholder (other than as a holder of not more than five percent (5%) percent collectively and in of the aggregate of any class of total outstanding publicly traded equity securities of a publicly-traded entity) or in any other capacity or manner whatsoever, (i) seek, solicit, or attempt to establish a business relationship within the Competing Business with a Person so engaged;
who (A) was a client, customer, supplier or vendor of the Business during the twenty-four (24) months preceding the Closing Date or (ii) prohibit was solicited directly by any Seller or restrict an employee of any SellerSeller during the twelve (12) months preceding the Closing Date to become a client, customer, supplier or vendor of the Business (each a “Restricted Party”), or (iii) request, induce or attempt to limit or influence any Restricted Party or business entity to limit, curtain, cancel or terminate any business it transacts with, or products it provides to or receives from, any Seller or the Buyer. For purposes hereof, a Restricted Party shall include, without limitation, the Persons listed on Schedule 6.3(c).
(d) During the Restricted Period, each of the Sellers and Members shall not, and each shall cause its Affiliates not to, without the prior written consent of the Buyer, directly or indirectly, from engaging either individually or on behalf of, or in such Seller’s business partnership or conjunction with, any Person, as conducted on the Effective Date and reasonable extensions thereofowner, which may include routineofficer, day-to-day transactions with any entitymanager, and
director, partner, investor, employee, agent, shareholder (iii) apply to or restrict any business other than as a holder of which a Seller acquires control after the Effective Date provided that the acquired business did not receive more than $25,000,000 five percent (5%) of the total outstanding equity securities of a publicly-traded entity) or in any other capacity or manner whatsoever, (i) hire, solicit or recruit the employment or services of employees employed with or consultants engaged by the Buyer or any of its aggregate net sales Affiliates at the time of any such actions or within three (as measured during the 12 full calendar 3) months prior to such acquisition) from product lines included within the definition of Company Business. Each Seller agrees that this covenant is reasonable with respect to its duration, geographical area and scope. For purposes of this Agreement, the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
(c) Gulf Oil and Gulf India each agree during the Non-Compete Period not to acquire, directly or indirectly, control of any businesses involved inaction, or otherwise competing with, the business of the Combined Business from any entity on Schedule 1 hereto.
(dii) Each Seller agrees that for a period commencing on the Effective Date and ending three years after the Closing Date (the “Non-Solicit Period”), each Seller shall not, directly or indirectly: (i) induce, solicit, recruit induce or attempt to persuade induce any employee or consultant of the Combined Business Buyer or any of its Affiliates to terminate terminate, modify or sever his or her employment or consulting relationship with the Buyer or any of its subsidiaries, or (ii) solicit the employment of any of the employees of the Combined Business. Notwithstanding the above, Sellers shall not be restricted from (1) soliciting for employment or hiring former employees of Buyer or the Company (including their respective subsidiaries) whose employment was terminated by Buyer or the Company (including their respective subsidiaries) at least six months prior to such initial solicitation by such Seller or (2) soliciting employees of the Combined Business by means of a general solicitation through a public medium or general or mass mailing that is not specifically targeted at employees or former employees of the Combined BusinessAffiliates; provided, however, that this clause (2A) shall not permit any Seller to the Sellers, Members and their Affiliates may hire any such person whose employment is terminated by the Buyer or any of its Affiliates; and (B) nothing in this Section 6.3(d) shall prohibit the Sellers, Members or any of their Affiliates from engaging in general solicitations to the public or general advertising not targeted at employees during of the Non-Solicit PeriodBuyer, its Affiliates or the Business and hiring persons responding thereto provided such persons are in no way otherwise solicited by them.
(e) It is the intention Each of the parties Sellers and Members acknowledges that the Buyer would be irreparably harmed and the value of the transaction contemplated hereby to Buyer would be diminished by any violation of Sellers’ and Members’ obligations under this Section 6.3 and that, in addition to all other rights or remedies available at law or in equity, if any of the Sellers or Members violates any of the covenants set forth in this Section 6.3, the Buyer shall be entitled to injunctive relief or such other relief against such Seller or Member as may be provided at Law or in equity together with such damages as may be provided at Law or in equity. The Buyer shall be entitled where provided under applicable Law to specific performance of the requirements of this Section 6.3 or to temporary or permanent injunctive relief against any breach of such provisions of this Agreement by the Sellers or Members, without the necessity of posting a bond or other security.
(f) Each of the Sellers and Members acknowledges that the goodwill associated with the Business and its customers, suppliers, vendors and employees is an integral component of the value of the Business to the Buyer and that the obligations of the Sellers and Members under this Section 6.3 are a material inducement to the Buyer’s execution and performance of this Agreement and that the restrictions contained in this Section 1 shall be enforced 6.3 are reasonable as to the greatest extent (but to no greater extent) in time, geographic area and degree scope of participation as activity and do not impose a greater restraint than is permitted by necessary to protect the Law goodwill and other legitimate business interests of that jurisdiction whose Law is applicable to any acts allegedly in breach of such covenants. To this end, the parties agree that Buyer.
(g) If the covenants contained in this Section 1 shall be construed to extend in time and territory and with respect to degree of participation only so far as they may be enforced in such jurisdiction, and that the covenants contained in this Section 1 are to that end hereby declared divisible and severable. It being the purpose provisions of this Section 1 6.3 are found by a court of competent jurisdiction to govern competition by the Sellers and their respective subsidiariescontain unreasonable limitations as to time, the non-competition covenants contained in this Section 1 shall be governed by and construed according geographic area or scope of activity, then such court is hereby directed to reform such provisions to the Law minimum extent necessary to cause the limitations contained therein as to time, geographical area and scope of all the jurisdictions in which competition in breach of this Agreement is alleged to have occurred or activity to be threatened that best gives them effectreasonable and enforceable.
Appears in 1 contract
Confidentiality Non Competition Non Solicitation. (a) From The Seller acknowledges that in the course of its ownership of the Purchased Assets and after operation of the date hereofBusiness it has had access to all confidential and proprietary information relating to the Business and the Purchased Assets (the “Confidential Information”). Each of the Stockholders also acknowledges that in the course of its ownership of the Seller, each such Stockholder, together with its Affiliates, has had access to the Confidential Information. Each of the Seller shalland Stockholders agrees that it shall not, and shall cause its Affiliates to, hold, and shall use its reasonable best efforts to cause its not authorize or permit any of their respective Representatives Affiliates, directly or indirectly, at any time, to hold, in confidence disclose any and all information, whether written Confidential Information to any other Person or oral, concerning Buyer, the Company and the Company Subsidiaries, except to use any Confidential Information to the extent detriment of Buyer; provided, however, that for purposes of this Section 6.03(a), Confidential Information shall not be deemed to include such Seller can show that such information: (i) information as is generally available to and known by the public or the industry through no fault of the Seller, Stockholders or any of their Affiliates in breach of the terms hereof; provided, further, that this Section 6.03(a) shall not prevent the disclosure of Confidential Information by the Seller or Stockholders to the extent required in any proceeding between the Parties; and, provided further, that this Section 6.03 shall not restrict any of the Stockholders from using or disclosing Confidential Information in the course of employment with Buyer. If the Seller, Stockholders or their respective Affiliates is compelled to disclose any Confidential Information by any legal proceeding or the federal securities laws, the Seller or such Stockholder shall promptly notify Buyer of such required disclosure so that Buyer may seek, at its sole expense, a protective order or other appropriate remedy. If such protective order or other remedy is not obtained, the Seller or such Stockholder agrees to disclose only that portion of the Confidential Information which is legally required to be disclosed and to take all reasonable steps to preserve the confidentiality of the Confidential Information.
(b) Each of the Seller and Stockholders agrees that it shall not, and shall not permit any of its Affiliates to, at any time during the three-year period immediately following the Closing Date (the “Restricted Period”) directly or indirectly, either individually or on behalf of, or in partnership or conjunction with, any Person, as owner, officer, manager, director, partner, investor, employee, agent, shareholder (other than as a holder of not more than one percent (1%) of the total outstanding equity securities of a publicly-traded entity) or in any other capacity or manner whatsoever, carry on or engage in the business of providing well services for the oil and gas industry, including equipment support, containment and rig mat installation, berming system installation, design, construction and installation of cellars, site‑support services, site configuration and water storage services (the “Competing Business”) in the States of Pennsylvania, Ohio, West Virginia, Virginia, Maryland, New York, Wyoming, Texas, Illinois, Indiana and Louisiana (the “Territory”).
(c) Each of the Seller and Stockholders agrees that it shall not, and shall not permit any of its Affiliates to, at any time during the Restricted Period, directly or indirectly, either individually or on behalf of, or in partnership or conjunction with, any Person, as owner, officer, manager, director, partner, investor, employee, agent, shareholder (other than as a holder of not more than one percent (1%) of the total outstanding equity securities of a publicly-traded entity) or in any other capacity or manner whatsoever, (i) seek, solicit, or attempt to establish a business relationship within the Competing Business with a Person who (A) was a client, customer, supplier or vendor of the Business during the twenty-four (24) months preceding the Closing Date or (B) was solicited directly by the Seller or an employee of the Seller during the twelve (12) months preceding the Closing Date to become a client, customer, supplier or vendor of the Business (each a “Restricted Party”), or (ii) request, induce or attempt to limit or influence any Restricted Party or business entity to limit, curtain, cancel or terminate any business it transacts with, or products it provides to or receives from, the Seller or Buyer. For purposes hereof, a Restricted Party shall include, without limitation, the Persons listed on Schedule 6.03(c). Notwithstanding the provisions of Section 6.03(b) and this Section 6.03(c), Compliance Staffing Agency shall be permitted, and Xxxx Xxxxx shall be indirectly permitted through his ownership of Compliance Staffing Agency, to provide staffing services to the oil and gas industry within the Territory.
(d) During the Restricted Period, each of the Seller and Stockholders shall not, and each shall cause its Affiliates not to, without the prior written consent of Buyer, directly or indirectly, either individually or on behalf of, or in partnership or conjunction with, any Person, as owner, officer, manager, director, partner, investor, employee, agent, shareholder (other than as a holder of not more than one percent (1%) of the total outstanding equity securities of a publicly-traded entity) or in any other capacity or manner whatsoever, (i) hire, solicit or recruit the employment or services of employees employed with or consultants engaged by Buyer or any of its Affiliates at the time of any such actions or within three (3) months prior to such action, or (ii) induce or attempt to induce any employee or consultant of Buyer or any of its Affiliates to terminate, modify or sever his or her employment or consulting relationship with Buyer or any of its Affiliates; provided, however, that (A) the Seller, Stockholders and their respective Affiliates may hire any such person whose employment is terminated by Buyer or any of its Affiliates; and (B) nothing in this Section 6.03(d) shall prohibit the Seller, Stockholders or any of their respective Affiliates from engaging in general solicitations to the public or Representatives or (ii) is lawfully acquired by such Sellergeneral advertising not targeted at employees of Buyer, any of its Affiliates or their respective Representatives from the Business and after the date hereof from sources that hiring persons responding thereto provided such persons are not prohibited from disclosing such information in no way otherwise solicited by a legal, contractual or fiduciary obligation. If any Seller or any of its Affiliates or their respective Representatives are compelled to disclose any information by judicial or administrative process or by other requirements of Law, such Seller shall promptly notify Buyer in writing and shall disclose only that portion of such information that such Seller is advised by its counsel is legally required to be disclosed, provided that such Seller shall use reasonable best efforts to obtain an appropriate protective order or other reasonable assurance that confidential treatment will be accorded such information.
(b) Each Seller agrees that for a period commencing on the Effective Date and ending two years after the Closing Date (the “Non-Compete Period”), it shall not, other than solely through its direct or indirect ownership of Buyer’s capital stock or any other interests in Buyer, directly, or indirectly, including through or on behalf of a subsidiary, anywhere in the world, excluding India: (i) own, manage, operate or control any business which competes with any Combined Business or (ii) be or become a shareholder, partner, member or owner of any Person who is engaged in any Combined Business; provided, however that nothing in this Agreement shall:
(i) prohibit or restrict any Seller, directly or indirectly, from owning, as a passive investor, not more than five (5%) percent collectively and in the aggregate of any class of outstanding publicly traded securities of any Person so engaged;
(ii) prohibit or restrict any Seller, directly or indirectly, from engaging in such Seller’s business as conducted on the Effective Date and reasonable extensions thereof, which may include routine, day-to-day transactions with any entity, and
(iii) apply to or restrict any business of which a Seller acquires control after the Effective Date provided that the acquired business did not receive more than $25,000,000 of its aggregate net sales (as measured during the 12 full calendar months prior to such acquisition) from product lines included within the definition of Company Business. Each Seller agrees that this covenant is reasonable with respect to its duration, geographical area and scope. For purposes of this Agreement, the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
(c) Gulf Oil and Gulf India each agree during the Non-Compete Period not to acquire, directly or indirectly, control of any businesses involved in, or otherwise competing with, the business of the Combined Business from any entity on Schedule 1 hereto.
(d) Each Seller agrees that for a period commencing on the Effective Date and ending three years after the Closing Date (the “Non-Solicit Period”), each Seller shall not, directly or indirectly: (i) induce, solicit, recruit or attempt to persuade any employee of the Combined Business to terminate his or her employment with the Buyer or any of its subsidiaries, or (ii) solicit the employment of any of the employees of the Combined Business. Notwithstanding the above, Sellers shall not be restricted from (1) soliciting for employment or hiring former employees of Buyer or the Company (including their respective subsidiaries) whose employment was terminated by Buyer or the Company (including their respective subsidiaries) at least six months prior to such initial solicitation by such Seller or (2) soliciting employees of the Combined Business by means of a general solicitation through a public medium or general or mass mailing that is not specifically targeted at employees or former employees of the Combined Business; provided, however, that this clause (2) shall not permit any Seller to hire any such employees during the Non-Solicit Periodthem.
(e) It is the intention Each of the parties Seller and Stockholders acknowledges that Buyer would be irreparably harmed and the value of the transaction contemplated hereby to Buyer would be diminished by any violation of the Seller’s and Stockholders’ obligations under this Section 6.03 and that, in addition to all other rights or remedies available at law or in equity, if the Seller or Stockholders violates any of the covenants set forth in this Section 6.03, Buyer shall be entitled to injunctive relief or such other relief against the Seller or such Stockholder as may be provided at Law or in equity together with such damages as may be provided at Law or in equity. Buyer shall be entitled where provided under applicable Law to specific performance of the requirements of this Section 6.03 or to temporary or permanent injunctive relief against any breach of such provisions of this Agreement by the Seller and Stockholders, without the necessity of posting a bond or other security.
(f) Each of the Seller and Stockholders acknowledges that the covenants goodwill associated with the Business and its customers, suppliers, vendors and employees is an integral component of the value of the Business to Buyer and that the obligations of the Seller and Stockholders under this Section 6.03 are a material inducement to Buyer’s execution and performance of this Agreement and that the restrictions contained in this Section 1 shall be enforced 6.03 are reasonable as to the greatest extent (but to no greater extent) in time, geographic area and degree scope of participation as activity and do not impose a greater restraint than is permitted by necessary to protect the Law goodwill and other legitimate business interests of that jurisdiction whose Law is applicable to any acts allegedly in breach of such covenants. To this end, Buyer.
(g) If the parties agree that the covenants contained in this Section 1 shall be construed to extend in time and territory and with respect to degree of participation only so far as they may be enforced in such jurisdiction, and that the covenants contained in this Section 1 are to that end hereby declared divisible and severable. It being the purpose provisions of this Section 1 6.03 are found by a court of competent jurisdiction to govern competition by the Sellers and their respective subsidiariescontain unreasonable limitations as to time, the non-competition covenants contained in this Section 1 shall be governed by and construed according geographic area or scope of activity, then such court is hereby directed to reform such provisions to the Law minimum extent necessary to cause the limitations contained therein as to time, geographical area and scope of all the jurisdictions in which competition in breach of this Agreement is alleged to have occurred or activity to be threatened that best gives them effectreasonable and enforceable.
Appears in 1 contract
Confidentiality Non Competition Non Solicitation. (a) From and after the date hereof, each Seller shall, and shall cause its Affiliates to, hold, and shall use its reasonable best efforts to cause its or their respective Representatives to hold, in confidence any and all information, whether written or oral, concerning Buyer, the Company and the Company Subsidiaries, except to the extent that such Seller can show that such informationThe Consultant acknowledges that: (i) the Consultant’s service to the Bank will require that the Consultant have access to and knowledge of confidential information of the Bank relating to the Business, including, but not limited to, the identity of the Bank’s employees, clients, customers, the kinds of services provided by the Bank, the manner in which such services are performed or offered to be performed, the service needs of actual or prospective clients and customers, pricing information and other contractual terms, information concerning the creation, acquisition or disposition of products and services, creative ideas and concepts, and other trade secrets, in each case other than as and to the extent such information is generally known or publicly available to and known through no violation of this Section 7 by the public through no fault of any Seller Consultant or any of their respective Affiliates or Representatives or such information is readily discernible (the “Confidential Information”); and (ii) is lawfully acquired by such Seller, any of its Affiliates or their respective Representatives from and after the date hereof from sources that are not prohibited from disclosing such information by a legal, contractual or fiduciary obligation. If any Seller or any of its Affiliates or their respective Representatives are compelled to disclose any information by judicial or administrative process or by other requirements of Law, such Seller shall promptly notify Buyer in writing and shall disclose only that portion of such information that such Seller is advised by its counsel is legally required to be disclosed, provided that such Seller shall use reasonable best efforts to obtain an appropriate protective order or other reasonable assurance that confidential treatment will be accorded such information.
(b) Each Seller agrees that for a period commencing on the Effective Date and ending two years after the Closing Date (the “Non-Compete Period”), it shall not, other than solely through its direct or indirect ownership of Buyer’s capital stock or any other interests in Buyer, directly, or indirectly, including through or on behalf of a subsidiary, anywhere in the world, excluding India: (i) own, manage, operate or control any business which competes with any Combined Business or (ii) be or become a shareholder, partner, member or owner disclosure of any Person who is engaged in any Combined Business; providedsuch Confidential Information may place the Bank at a competitive disadvantage and may do damage, however that nothing in this Agreement shallmonetary or otherwise, to the Bank’s business. Accordingly, the Bank and the Consultant agree as follows:
(i) prohibit or restrict any SellerDuring the Term and thereafter, the Consultant shall not, directly or indirectly, from owningwhether individually, as a passive investordirector, not more stockholder, owner, partner, employee, principal or agent of any business, or in any other capacity, disclose, furnish, make available or utilize any of the Confidential Information, other than five (5%) percent collectively and in the aggregate proper performance of the services contemplated herein, or as expressly permitted herein, or as required by a court of competent jurisdiction or other administrative or legislative body, provided that the Consultant shall promptly notify the Bank so that the Bank may seek a protective order or other appropriate remedy. The Consultant agrees to return all documents or other materials containing Confidential Information, including all photocopies, extracts and summaries thereof, and any class such information stored electronically on tapes, computer disks or in any other manner to the Bank at any time upon request by the Bank and immediately upon the termination of outstanding publicly traded securities his service to the Bank for any reason, unless Confidential Information was provided to him in his capacity as a member of any Person so engaged;the Board of Directors of the Company and the Bank and he continues his service on such Boards following the termination of this Agreement.
(ii) prohibit or restrict any SellerDuring the Term, directly or indirectlyand for a period of one (1) year thereafter, from engaging the Consultant shall not engage in such Seller’s business as conducted on the Effective Date and reasonable extensions thereof, which may include routine, day-to-day transactions with any entity, and
(iii) apply to or restrict any business of which a Seller acquires control after the Effective Date provided that the acquired business did not receive more than $25,000,000 of its aggregate net sales Competition (as measured during defined herein) with the 12 full calendar months prior to such acquisitionBank or its affiliates in the Territory (as defined herein) from product lines included within unless agreed upon by the definition of Company Business. Each Seller agrees that this covenant is reasonable with respect to its duration, geographical area and scopeparties in writing. For purposes of this Agreement, “Competition” by the term “control” (including Consultant shall mean the terms “controlled by” and “under common control with”) means the possessionConsultant’s engaging in any activities relating to or otherwise being employed by or acting as a consultant to, directly or indirectlybeing a director, of the power to direct employee, agent, equity holder or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
(c) Gulf Oil and Gulf India each agree during the Non-Compete Period not to acquire, directly or indirectly, control partner of any businesses involved in, or otherwise competing with, entity engaged in the business of banking as conducted by the Combined Business from any entity on Schedule 1 hereto.
(d) Each Seller agrees that for a period commencing on the Effective Date and ending three years after the Closing Date Bank (the “Non-Solicit PeriodBusiness”), each Seller shall not, directly and “Territory” means any state in which the Bank has a branch or indirectly: (i) induce, solicit, recruit or attempt to persuade any employee of the Combined Business to terminate his or her employment with the Buyer or any of its subsidiaries, or (ii) solicit the employment of any of the employees of the Combined Business. Notwithstanding the above, Sellers shall not be restricted from (1) soliciting for employment or hiring former employees of Buyer or the Company (including their respective subsidiaries) whose employment was terminated by Buyer or the Company (including their respective subsidiaries) at least six months prior to such initial solicitation by such Seller or (2) soliciting employees of the Combined Business by means of a general solicitation through a public medium or general or mass mailing that is not specifically targeted at employees or former employees of the Combined Businessoffice location; provided, however, that it will not be a violation of this clause covenant for the Consultant to become the registered or beneficial owner of less than five percent (25%) shall not permit of any Seller to hire any such employees during the Non-Solicit Period.
(e) It is the intention class of the parties that capital stock of any one or more corporations registered under the covenants contained in this Section 1 shall be enforced to the greatest extent (but to no greater extent) in timeSecurities Exchange Act of 1934, area and degree of participation as is permitted by the Law of that jurisdiction whose Law is applicable to any acts allegedly in breach of such covenants. To this end, the parties agree that the covenants contained in this Section 1 shall be construed to extend in time and territory and with respect to degree of participation only so far as they may be enforced in such jurisdiction, and that the covenants contained in this Section 1 are to that end hereby declared divisible and severable. It being the purpose of this Section 1 to govern competition by the Sellers and their respective subsidiaries, the non-competition covenants contained in this Section 1 shall be governed by and construed according to the Law of all the jurisdictions in which competition in breach of this Agreement is alleged to have occurred or to be threatened that best gives them effectamended.
Appears in 1 contract
Confidentiality Non Competition Non Solicitation. (a) From You hereby and after ------------------------------------------------- ackowledge the date hereof, each Seller shall, and shall cause its Affiliates to, hold, and shall use its reasonable best efforts to cause its or their respective Representatives to hold, in confidence any and all information, whether written or oral, concerning Buyer, the Company and the Company Subsidiaries, except to the extent that such Seller can show that such information: (i) is generally available to and known by the public through no fault of any Seller or any of their respective Affiliates or Representatives or (ii) is lawfully acquired by such Seller, any of its Affiliates or their respective Representatives from and after the date hereof from sources that are not prohibited from disclosing such information by a legal, contractual or fiduciary obligation. If any Seller or any of its Affiliates or their respective Representatives are compelled to disclose any information by judicial or administrative process or by other requirements of Law, such Seller shall promptly notify Buyer in writing and shall disclose only that portion of such information that such Seller is advised by its counsel is legally required to be disclosed, provided that such Seller shall use reasonable best efforts to obtain an appropriate protective order or other reasonable assurance that confidential treatment will be accorded such information.
(b) Each Seller agrees that for a period commencing on the Effective Date and ending two years after the Closing Date (the “Non-Compete Period”), it shall not, other than solely through its direct or indirect ownership of Buyer’s capital stock or any other interests in Buyer, directly, or indirectly, including through or on behalf of a subsidiary, anywhere in the world, excluding India: (i) own, manage, operate or control any business which competes with any Combined Business or (ii) be or become a shareholder, partner, member or owner of any Person who is engaged in any Combined Business; provided, however that nothing in this Agreement shallfollowing:
(i) prohibit that you have returned to Number Nine all Number Nine documents (and any copies thereof) and property, that you shall abide by the provisions of the "Non-Compete and Confidentiality Agreement" previously executed by you and attached hereto as Exhibit A (the terms of which are hereby incorporated by reference and shall survive the signing of this Agreement), and that you otherwise shall abide by any and all common low and/or statutory obligations relating to protection and non-disclosure of Number Nine's trade secrets and/or confidential and proprietary documents and information; however, notwithstanding the foregoing, you shall not be deemed to be in violation of section 2 or restrict any Selleryour Non-Compete and Confidentiality Agreement so long as such employment or association does not involve development, manufacture, sale or distribution of products directly competitive with the products developed, manufactured, sold or indirectly, from owning, as a passive investor, not more than five (5%) percent collectively and in the aggregate of any class of outstanding publicly traded securities of any Person so engaged;distributed by Number Nine.
(ii) prohibit that all information relating in any way to the subject matter if this Letter Agreement, including the terms and amounts, shall be held confidential by you and shall not be publicized or restrict disclosed to any Sellerperson (other than an immediate family member, directly legal counsel or indirectlyfinancial advisor, from engaging in provided that any such Seller’s individual to whom disclosure is made agrees to be bound by these confidentiality obligations), business entity or government agency (except as conducted on the Effective Date and reasonable extensions thereof, which may include routine, day-to-day transactions with any entity, andmandated by state of federal law).
(iii) apply to That you will not make any statements that are professionally or restrict any business of which a Seller acquires control after the Effective Date provided that the acquired business did not receive more than $25,000,000 of its aggregate net sales (as measured during the 12 full calendar months prior to such acquisition) from product lines included within the definition of Company Business. Each Seller agrees that this covenant is reasonable with respect to its durationpersonally disparaging about, geographical area and scope. For purposes of this Agreementor adverse to, the term “control” interests of Number Nine (including the terms “controlled by” its officers, directors and “under common control with”employees) means the possessionincluding, directly but not limited to, any statements that disparage any person, product, service, finances, financial condition, capability or indirectly, any other aspect of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
(c) Gulf Oil and Gulf India each agree during the Non-Compete Period not to acquire, directly or indirectly, control of any businesses involved in, or otherwise competing with, the business of Number Nine, or engage in any conduct which is intended to harm professionally or personally the Combined Business from any entity on Schedule 1 hereto.reputation of Number Nine (including its officer, directors and employees);
(div) Each Seller agrees that for a period commencing on the Effective Date and ending three years after the Closing Date (the “Non-Solicit Period”), each Seller shall not, directly or indirectly: (i) induce, solicit, recruit or attempt to persuade any employee of the Combined Business to terminate his or her employment with the Buyer or any of its subsidiaries, or (ii) solicit the employment breach of any of the employees of the Combined Business. Notwithstanding the above, Sellers foregoing covenants by you shall not be restricted from (1) soliciting for employment or hiring former employees of Buyer or the Company (including their respective subsidiaries) whose employment was terminated by Buyer or the Company (including their respective subsidiaries) at least six months prior to such initial solicitation by such Seller or (2) soliciting employees of the Combined Business by means of constitute a general solicitation through a public medium or general or mass mailing that is not specifically targeted at employees or former employees of the Combined Business; provided, however, that this clause (2) shall not permit any Seller to hire any such employees during the Non-Solicit Period.
(e) It is the intention of the parties that the covenants contained in this Section 1 shall be enforced to the greatest extent (but to no greater extent) in time, area and degree of participation as is permitted by the Law of that jurisdiction whose Law is applicable to any acts allegedly in breach of such covenants. To this end, the parties agree that the covenants contained in this Section 1 shall be construed to extend in time and territory and with respect to degree of participation only so far as they may be enforced in such jurisdiction, and that the covenants contained in this Section 1 are to that end hereby declared divisible and severable. It being the purpose of this Section 1 to govern competition by the Sellers and their respective subsidiaries, the non-competition covenants contained in this Section 1 shall be governed by and construed according to the Law of all the jurisdictions in which competition in material breach of this Agreement is alleged and shall relieve Number Nine of any further obligations hereunder and, in addition to have occurred any other legal or equitable remedy available to be threatened that best gives them effectNumber Nine, shall entitle Number Nine to recover any monies already paid to you pursuant to Section 2 of this Letter Agreement.
Appears in 1 contract
Samples: Separation Agreement (Number Nine Visual Technology Corp)
Confidentiality Non Competition Non Solicitation. (a) From The Seller acknowledges that in the course of its ownership of the Purchased Assets and after operation of the date hereofBusiness it has had access to all confidential and proprietary information relating to the Business and the Purchased Assets (the “Confidential Information”). Each of the Stockholders also acknowledges that in the course of its ownership of the Seller, each such Stockholder, together with its Affiliates, has had access to the Confidential Information. Each of the Seller shalland Stockholders agrees that it shall not, and shall cause its Affiliates to, hold, and shall use its reasonable best efforts to cause its not authorize or permit any of their respective Representatives Affiliates, directly or indirectly, at any time, to hold, in confidence disclose any and all information, whether written Confidential Information to any other Person or oral, concerning Buyer, the Company and the Company Subsidiaries, except to use any Confidential Information to the extent detriment of Buyer; provided, however, that for purposes of this Section 6.03(a), Confidential Information shall not be deemed to include such Seller can show that such information: (i) information as is generally available to and known by the public or the industry through no fault of the Seller, Stockholders or any of their Affiliates in breach of the terms hereof; provided, further, that this Section 6.03(a) shall not prevent the disclosure of Confidential Information by the Seller or Stockholders to the extent required in any proceeding between the Parties; and, provided further, that this Section 6.03 shall not restrict any of the Stockholders from using or disclosing Confidential Information in the course of employment with Buyer. If the Seller, Stockholders or their respective Affiliates is compelled to disclose any Confidential Information by any legal proceeding or the federal securities laws, the Seller or such Stockholder shall promptly notify Buyer of such required disclosure so that Buyer may seek, at its sole expense, a protective order or other appropriate remedy. If such protective order or other remedy is not obtained, the Seller or such Stockholder agrees to disclose only that portion of the Confidential Information which is legally required to be disclosed and to take all reasonable steps to preserve the confidentiality of the Confidential Information.
(b) Each of the Seller and Stockholders agrees that it shall not, and shall not permit any of its Affiliates to, at any time during the three-year period immediately following the Closing Date (the “Restricted Period”) directly or indirectly, either individually or on behalf of, or in partnership or conjunction with, any Person, as owner, officer, manager, director, partner, investor, employee, agent, shareholder (other than as a holder of not more than one percent (1%) of the total outstanding equity securities of a publicly-traded entity) or in any other capacity or manner whatsoever, carry on or engage in the business of providing the following services for power and utility industry and projects: site planning and preparation, access road construction, row clearing, erosion control installation, stormwater pollution prevention plan design and implementation, complete site restoration, mobile mat washing, mat tracking, emergency support services and equipotential zone installation, management and demobilization (the “Competing Business”) in the States of Indiana, Michigan and Ohio (the “Territory”).
(c) Each of the Seller and Stockholders agrees that it shall not, and shall not permit any of its Affiliates to, at any time during the Restricted Period, directly or indirectly, either individually or on behalf of, or in partnership or conjunction with, any Person, as owner, officer, manager, director, partner, investor, employee, agent, shareholder (other than as a holder of not more than one percent (1%) of the total outstanding equity securities of a publicly-traded entity) or in any other capacity or manner whatsoever, (i) seek, solicit, or attempt to establish a business relationship within the Competing Business with a Person who (A) was a client, customer, supplier or vendor of the Business during the twenty-four (24) months preceding the Closing Date or (B) was solicited directly by the Seller or an employee of the Seller during the twelve (12) months preceding the Closing Date to become a client, customer, supplier or vendor of the Business (each a “Restricted Party”), or (ii) request, induce or attempt to limit or influence any Restricted Party or business entity to limit, curtain, cancel or terminate any business it transacts with, or products it provides to or receives from, the Seller or Buyer. For purposes hereof, a Restricted Party shall include, without limitation, the Persons listed on Schedule 6.03(c).
(d) During the Restricted Period, each of the Seller and Stockholders shall not, and each shall cause its Affiliates not to, without the prior written consent of Buyer, directly or indirectly, either individually or on behalf of, or in partnership or conjunction with, any Person, as owner, officer, manager, director, partner, investor, employee, agent, shareholder (other than as a holder of not more than one percent (1%) of the total outstanding equity securities of a publicly-traded entity) or in any other capacity or manner whatsoever, (i) hire, solicit or recruit the employment or services of employees employed with or consultants engaged by Buyer or any of its Affiliates at the time of any such actions or within three (3) months prior to such action, or (ii) induce or attempt to induce any employee or consultant of Buyer or any of its Affiliates to terminate, modify or sever his or her employment or consulting relationship with Buyer or any of its Affiliates; provided, however, that (A) the Seller, Stockholders and their respective Affiliates may hire any such person whose employment is terminated by Buyer or any of its Affiliates; and (B) nothing in this Section 6.03(d) shall prohibit the Seller, Stockholders or any of their respective Affiliates from engaging in general solicitations to the public or Representatives or (ii) is lawfully acquired by such Sellergeneral advertising not targeted at employees of Buyer, any of its Affiliates or their respective Representatives from the Business and after the date hereof from sources that hiring persons responding thereto provided such persons are not prohibited from disclosing such information in no way otherwise solicited by a legal, contractual or fiduciary obligation. If any Seller or any of its Affiliates or their respective Representatives are compelled to disclose any information by judicial or administrative process or by other requirements of Law, such Seller shall promptly notify Buyer in writing and shall disclose only that portion of such information that such Seller is advised by its counsel is legally required to be disclosed, provided that such Seller shall use reasonable best efforts to obtain an appropriate protective order or other reasonable assurance that confidential treatment will be accorded such information.
(b) Each Seller agrees that for a period commencing on the Effective Date and ending two years after the Closing Date (the “Non-Compete Period”), it shall not, other than solely through its direct or indirect ownership of Buyer’s capital stock or any other interests in Buyer, directly, or indirectly, including through or on behalf of a subsidiary, anywhere in the world, excluding India: (i) own, manage, operate or control any business which competes with any Combined Business or (ii) be or become a shareholder, partner, member or owner of any Person who is engaged in any Combined Business; provided, however that nothing in this Agreement shall:
(i) prohibit or restrict any Seller, directly or indirectly, from owning, as a passive investor, not more than five (5%) percent collectively and in the aggregate of any class of outstanding publicly traded securities of any Person so engaged;
(ii) prohibit or restrict any Seller, directly or indirectly, from engaging in such Seller’s business as conducted on the Effective Date and reasonable extensions thereof, which may include routine, day-to-day transactions with any entity, and
(iii) apply to or restrict any business of which a Seller acquires control after the Effective Date provided that the acquired business did not receive more than $25,000,000 of its aggregate net sales (as measured during the 12 full calendar months prior to such acquisition) from product lines included within the definition of Company Business. Each Seller agrees that this covenant is reasonable with respect to its duration, geographical area and scope. For purposes of this Agreement, the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
(c) Gulf Oil and Gulf India each agree during the Non-Compete Period not to acquire, directly or indirectly, control of any businesses involved in, or otherwise competing with, the business of the Combined Business from any entity on Schedule 1 hereto.
(d) Each Seller agrees that for a period commencing on the Effective Date and ending three years after the Closing Date (the “Non-Solicit Period”), each Seller shall not, directly or indirectly: (i) induce, solicit, recruit or attempt to persuade any employee of the Combined Business to terminate his or her employment with the Buyer or any of its subsidiaries, or (ii) solicit the employment of any of the employees of the Combined Business. Notwithstanding the above, Sellers shall not be restricted from (1) soliciting for employment or hiring former employees of Buyer or the Company (including their respective subsidiaries) whose employment was terminated by Buyer or the Company (including their respective subsidiaries) at least six months prior to such initial solicitation by such Seller or (2) soliciting employees of the Combined Business by means of a general solicitation through a public medium or general or mass mailing that is not specifically targeted at employees or former employees of the Combined Business; provided, however, that this clause (2) shall not permit any Seller to hire any such employees during the Non-Solicit Periodthem.
(e) It is the intention Each of the parties Seller and Stockholders acknowledges that Buyer would be irreparably harmed and the value of the transaction contemplated hereby to Buyer would be diminished by any violation of the Seller’s and Stockholders’ obligations under this Section 6.03 and that, in addition to all other rights or remedies available at law or in equity, if the Seller or Stockholders violates any of the covenants set forth in this Section 6.03, Buyer shall be entitled to injunctive relief or such other relief against the Seller or such Stockholder as may be provided at Law or in equity together with such damages as may be provided at Law or in equity. Buyer shall be entitled where provided under applicable Law to specific performance of the requirements of this Section 6.03 or to temporary or permanent injunctive relief against any breach of such provisions of this Agreement by the Seller and Stockholders, without the necessity of posting a bond or other security.
(f) Each of the Seller and Stockholders acknowledges that the covenants goodwill associated with the Business and its customers, suppliers, vendors and employees is an integral component of the value of the Business to Buyer and that the obligations of the Seller and Stockholders under this Section 6.03 are a material inducement to Buyer’s execution and performance of this Agreement and that the restrictions contained in this Section 1 shall be enforced 6.03 are reasonable as to the greatest extent (but to no greater extent) in time, geographic area and degree scope of participation as activity and do not impose a greater restraint than is permitted by necessary to protect the Law goodwill and other legitimate business interests of that jurisdiction whose Law is applicable to any acts allegedly in breach of such covenants. To this end, Buyer.
(g) If the parties agree that the covenants contained in this Section 1 shall be construed to extend in time and territory and with respect to degree of participation only so far as they may be enforced in such jurisdiction, and that the covenants contained in this Section 1 are to that end hereby declared divisible and severable. It being the purpose provisions of this Section 1 6.03 are found by a court of competent jurisdiction to govern competition by the Sellers and their respective subsidiariescontain unreasonable limitations as to time, the non-competition covenants contained in this Section 1 shall be governed by and construed according geographic area or scope of activity, then such court is hereby directed to reform such provisions to the Law minimum extent necessary to cause the limitations contained therein as to time, geographical area and scope of all the jurisdictions in which competition in breach of this Agreement is alleged to have occurred or activity to be threatened that best gives them effectreasonable and enforceable.
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Confidentiality Non Competition Non Solicitation. (a) From Seller recognizes and after agrees that the date hereofuse or disclosure of the Confidential Information by Seller would cause Purchaser substantial losses and damages that could not be readily calculated and for which no remedy at law would be adequate. Accordingly, each Seller shallcovenants and agrees with Purchaser not to at any time, and shall cause its directly or indirectly, use, disclose or publish, or permit other Persons (including Affiliates toof such Seller), holdto directly or indirectly use, and shall use its reasonable best efforts to cause its disclose or their respective Representatives to holdpublish, in confidence any and all informationConfidential Information, whether written or oral, concerning Buyer, the Company and the Company Subsidiaries, except to the extent that such Seller can show that such information: unless (i) is such information becomes generally available known to and known by the public through no fault of any Seller or any of their respective Affiliates or Representatives or a Seller, (ii) is lawfully acquired by such Seller, any of its Affiliates or their respective Representatives from and after the date hereof from sources that are not prohibited from disclosing such information by a legal, contractual or fiduciary obligation. If any Seller or any of its Affiliates or their respective Representatives are compelled to disclose any information by judicial or administrative process or by other requirements of Law, such Seller shall promptly notify Buyer in writing and shall disclose only that portion of such information that such Seller party is advised by its counsel that disclosure is legally required to be disclosedby law or the order of any Governmental Authority of competent jurisdiction under color of law, provided or (iii) the disclosing party reasonably believes (based on advice of counsel) that such Seller disclosure is required in connection with the defense of a lawsuit; provided, however, that prior to disclosing any information pursuant to clause (ii) or (iii) above, such Person shall use reasonable best give prior written notice thereof to Purchaser and provide Purchaser with the opportunity to contest or limit such disclosure and shall cooperate with efforts to obtain an appropriate protective order or other reasonable assurance that confidential treatment will be accorded prevent such informationdisclosure.
(b) Each Except with respect to the 3DS Retained Business, Seller agrees that for a period commencing on the Effective Date and ending two years after from the Closing Date until the third anniversary of the Closing (the “Non-Compete Covenant Period”), it shall not, other than solely through not (and it will cause each of its direct or indirect ownership of Buyer’s capital stock or any other interests in Buyer, directly, or indirectly, including through or on behalf of a subsidiary, anywhere in the world, excluding India: (i) own, manage, operate or control any business which competes with any Combined Business or (ii) be or become a shareholder, partner, member or owner of any Person who is engaged in any Combined Business; provided, however that nothing in this Agreement shall:
(i) prohibit or restrict any SellerAffiliates not to), directly or indirectly, from owningalone or in association with any other Person, as a passive investorown, not more than five (5%) percent collectively and in the aggregate of manage, operate, control, participate in, invest in, perform services for, or otherwise carry on or engage in, any class of outstanding publicly traded securities of any Person so engaged;
(ii) prohibit or restrict any Sellerbusiness which, directly or indirectly, from engaging is in such Seller’s business competition with the Business as conducted on or proposed to be conducted immediately prior to the Effective Date and reasonable extensions thereof, which may include routine, day-to-day transactions with any entity, andClosing.
(iiic) apply to or restrict any business of which a Seller acquires control after the Effective Date provided that the acquired business did not receive more than $25,000,000 of its aggregate net sales (as measured during the 12 full calendar months prior to such acquisition) from product lines included within the definition of Company Business. Each Seller agrees that this covenant is reasonable with respect to during the Covenant Period, it will not (and it will cause each of its duration, geographical area and scope. For purposes of this Agreement, the term “control” (including the terms “controlled by” and “under common control with”) means the possessionAffiliates not to), directly or indirectly, of the power to direct solicit or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract recruit any Continuing Business Employees or otherwise.
(c) Gulf Oil and Gulf India each agree during the Non-Compete Period not to acquire, directly or indirectly, control of encourage any businesses involved in, or otherwise competing with, the business of the Combined Continuing Business from any entity on Schedule 1 hereto.
(d) Each Seller agrees that for a period commencing on the Effective Date and ending three years after the Closing Date (the “Non-Solicit Period”), each Seller shall not, directly or indirectly: (i) induce, solicit, recruit or attempt to persuade any employee of the Combined Business Employee to terminate his or her employment with the Buyer or any of its subsidiaries, or (ii) solicit the employment of any of the employees of the Combined Business. Notwithstanding the above, Sellers shall not be restricted from (1) soliciting for employment or hiring former employees of Buyer or the Company (including their respective subsidiaries) whose employment was terminated by Buyer or the Company (including their respective subsidiaries) at least six months prior to such initial solicitation by such Seller or (2) soliciting employees of the Combined Business by means of a general solicitation through a public medium or general or mass mailing that is not specifically targeted at employees or former employees of the Combined BusinessPurchaser; provided, however, that this clause (2) the foregoing restriction shall not permit any prohibit Seller or one of its Affiliates from soliciting or employing such a Person who is responding independently to hire a general published solicitation that is not directed specifically to any such employees during Person (including by a recruiter or search firm).
(d) For the Nonduration of the Covenant Period, Seller agrees that it will not (and will cause each of its Affiliates not to), without the prior written consent of Purchaser, have any direct or indirect interest in any Person (whether as director, member, partner, principal, proprietor, agent, consultant, officer, employee, independent contractor or as stockholder or investor owning either unlisted or untraded debt or equity securities or more than five percent (5%) of any class of the issued and outstanding securities of a corporation that is traded on a national securities exchange or in the over-Solicit Periodthe-counter market, or as a creditor or otherwise) that engages in any material respect in any business, trade or venture competing with any aspect of the Business as conducted or proposed to be conducted prior to the Closing.
(e) It The obligations of Seller under this Section 6.2 shall be in addition to any obligations Seller may have under any other Contract or applicable Law. If a final judgment of a court or tribunal of competent jurisdiction determines that any term or provision contained in this Section 6.2 is invalid or unenforceable, then the Parties agree that the court or tribunal will have the power (but without affecting the right of Seller or Purchaser to obtain the relief provided for in this Section 6.2 in any jurisdiction other than such court’s or tribunal’s jurisdiction) to reduce the scope, duration or geographic area of the term or provision, to delete specific words or phrases or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the parties that invalid or unenforceable term or provision. This Section 6.2 is reasonable and necessary to protect and preserve Purchaser’s legitimate business interests and the covenants contained in this Section 1 shall be enforced value of the Business and to the greatest extent (but to no greater extent) in time, area and degree of participation as is permitted by the Law of that jurisdiction whose Law is applicable to prevent any acts allegedly in breach of such covenantsunfair advantage conferred on Seller or its successors. To this endthe extent it may effectively do so under applicable Law, the parties agree that the covenants contained in this Section 1 shall be construed to extend in time Seller hereby waives on its own behalf and territory and with respect to degree on behalf of participation only so far as they may be enforced in such jurisdictionits successors, and that the covenants contained in this Section 1 are to that end hereby declared divisible and severable. It being the purpose any provision of Law which renders any provision of this Section 1 to govern competition by the Sellers and their respective subsidiaries6.2 invalid, the non-competition covenants contained void or unenforceable in this Section 1 shall be governed by and construed according to the Law of all the jurisdictions in which competition in any respect.
(f) Seller acknowledges that a breach or threatened breach of this Agreement is alleged Section 6.2 would give rise to have occurred irreparable harm to Purchaser, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Seller of any such obligations, Purchaser shall, in addition to any and all other rights and remedies that may be threatened available to it in respect of such breach, be entitled to seek equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that best gives them effectmay be available from a court of competent jurisdiction (without any requirement to post bond).
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Confidentiality Non Competition Non Solicitation. (a) From and Seller shall hold in confidence at all times after the date hereofof this Agreement all Proprietary Information, each Seller and shall, except as necessary for Seller to perform its obligations under the Distributorship Agreement and shall cause its Affiliates toConsulting Agreement, holdnot disclose, and shall publish or make use its reasonable best efforts to cause its or their respective Representatives to hold, in confidence of Proprietary Information at any and all information, whether time after the date of this Agreement without the prior written or oral, concerning consent of Buyer. Notwithstanding the foregoing, the Company and confidentiality obligations of this Section 5.2(a) shall not apply to information that is required to be disclosed pursuant to an order of a judicial authority or Governmental Entity having competent jurisdiction (provided Seller provides Buyer with reasonable prior written notice of the Company Subsidiaries, except order) or can be shown to the extent that such Seller can show that such information: (i) is have been generally available to and known by the public through no fault at the time of any Seller or any of their respective Affiliates or Representatives or (ii) is lawfully acquired by such disclosure to Seller, any other than as a result of its Affiliates or their respective Representatives from and after the date hereof from sources that are not prohibited from disclosing such information by a legal, contractual or fiduciary obligation. If any Seller or any breach of its Affiliates or their respective Representatives are compelled to disclose any information by judicial or administrative process or by other requirements of Law, such Seller shall promptly notify Buyer in writing and shall disclose only that portion of such information that such Seller is advised by its counsel is legally required to be disclosed, provided that such Seller shall use reasonable best efforts to obtain an appropriate protective order or other reasonable assurance that confidential treatment will be accorded such informationthis Section 5.2(a).
(b) Each Seller agrees acknowledges that Buyer will conduct the Business and/or has current plans to expand the Business. Seller acknowledges that to protect adequately the interest of Buyer in the Business and in the Purchased Assets, it is essential that any non-competition and non-solicitation covenant with respect thereto cover all of the Business. Except for the direct benefit of Buyer, Seller nor any of its Affiliates shall, during the Non-Compete Period, in any manner, directly or indirectly or by assisting others, engage in business with, have an equity or profit interest in or render services of any kind (including of an executive, marketing, sales, manufacturing, research and development, administrative, financial, independent contractor or consulting nature) to any Person that engages in the business of power line carrier products for sale within the utility industry for a period commencing on the Effective Date and ending two of 5 years after the Closing Date (the “Non-Compete Period”).
(c) Neither Seller nor any of its Affiliates shall, it shall notduring the Non-Compete Period, other than solely through its direct in any manner, directly or indirect ownership of Buyer’s capital stock indirectly or by assisting any other interests in BuyerPerson, directlyrecruit or hire away or attempt to recruit or hire away, or indirectly, including through on their own behalf or on behalf of a subsidiaryany other Person, anywhere in the world, excluding India: (i) own, manage, operate or control any business which competes with any Combined Business or (ii) be or become a shareholder, partner, member or owner employee of any Person who is engaged in any Combined Business; provided, however that nothing in this Agreement shall:Buyer.
(id) prohibit or restrict Neither Seller nor any Sellerof its Affiliates shall during the Non-Compete Period, directly or indirectly, from owningeither individually, as a passive investorin partnership, not more than five (5%) percent collectively and jointly, or in the aggregate of conjunction with, or on behalf of, any class of outstanding publicly traded securities of any Person so engaged;
(ii) prohibit or restrict any Seller, directly or indirectly, from engaging in such Seller’s business as conducted on the Effective Date and reasonable extensions thereof, which may include routine, day-to-day transactions with any entity, and
(iii) apply to or restrict any business of which a Seller acquires control after the Effective Date provided that the acquired business did not receive more than $25,000,000 of its aggregate net sales (as measured during the 12 full calendar months prior to such acquisition) from product lines included within the definition of Company Business. Each Seller agrees that this covenant is reasonable with respect to its duration, geographical area and scope. For purposes of this Agreement, the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through other than for the ownership direct benefit of voting securities, by contract Buyer or otherwise.
(c) Gulf Oil and Gulf India each agree during the Non-Compete Period not to acquire, directly or indirectly, control of any businesses involved in, or otherwise competing with, the business of the Combined Business from any entity on Schedule 1 hereto.
(d) Each Seller agrees that for a period commencing on the Effective Date and ending three years after the Closing Date (the “Non-Solicit Period”), each Seller shall not, directly or indirectlyits Affiliates: (i) induce, solicit, recruit solicit or attempt contact any customer of Buyer (or customer of Seller during the two (2) year period prior to persuade any employee Closing) (including actively sought prospective customers) for the purpose of providing services or products the Combined Business to terminate his or her employment with the Buyer or any of its subsidiariessame as, or substantially similar to, those provided by Buyer; (ii) solicit the employment of solicit, induce or encourage any of the employees of the Combined Business. Notwithstanding the above, Sellers shall not be restricted from (1) soliciting for employment or hiring former employees customer of Buyer to terminate or the Company (including their respective subsidiaries) whose employment was terminated by Buyer or the Company (including their respective subsidiaries) at least six months prior to such initial solicitation by such Seller modify any business relationship with Seller; or (2iii) soliciting employees otherwise take any action that may reasonably be anticipated to interfere with or disrupt any past, present or prospective business relationship, contractual or otherwise, between Buyer and any customer, supplier or agent of the Combined Business by means of a general solicitation through a public medium or general or mass mailing that is not specifically targeted at employees or former employees of the Combined Business; provided, however, that this clause (2) shall not permit any Seller to hire any such employees during the Non-Solicit PeriodBuyer.
(e) It In the event a judicial determination is the intention made that any of the parties provisions of this Section 5.2 constitutes an unreasonable or otherwise unenforceable restriction against Seller or any Affiliates, the provisions of this Section 5.2 shall be rendered void only to the extent that the covenants judicial determination finds the provisions to be unreasonable or otherwise unenforceable with respect to Seller or any of its Affiliates. Any judicial authority construing this Agreement shall be empowered to sever any prohibited business activity or any time period from the coverage of this Section 5.2 and to apply the provisions of this Section 5.2 to the remaining business activities and the remaining time period not so severed by the judicial authority. Moreover, notwithstanding the fact that any provision of this Section 5.2 is determined not to be specifically enforceable, Buyer shall nevertheless be entitled to seek monetary damages as a result of the breach of the provision by either Seller or any of its Affiliates.
(f) Any remedy at law for any breach of the provisions contained in this Section 1 5.2 shall be enforced inadequate and Buyer shall be entitled to the greatest extent (but to no greater extent) equitable relief, including, without limitation, injunctive relief, in time, area and degree of participation as is permitted by the Law of that jurisdiction whose Law is applicable addition to any acts allegedly in breach other remedy Buyer might have under this Agreement.
(g) Each of such covenants. To this end, the parties agree that the covenants contained foregoing paragraphs in this Section 1 5.2 shall be construed to extend in time constitute separate and territory and with respect to degree distinct covenants of participation only so far as they may be enforced in such jurisdiction, and that the covenants contained in this Section 1 are to that end hereby declared divisible and severable. It being the purpose of this Section 1 to govern competition by the Sellers and their respective subsidiaries, the non-competition covenants contained in this Section 1 shall be governed by and construed according to the Law of all the jurisdictions in which competition in breach of this Agreement is alleged to have occurred or to be threatened that best gives them effectSeller.
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