Covenant Against Competition. (a) As a further inducement to Buyer to ---------------------------- purchase the assets of Seller hereunder, Seller and the Shareholder agree jointly and not severally that (except to the extent otherwise provided in subsection (b) hereof) for the period from the Closing Date through the two (2) year anniversary of the Closing Date: (i) Seller and the Shareholder will not in any way, directly or indirectly, own, manage, operate or control any enterprise which engages in, or otherwise carries on, any business activity in competition with the business of Seller transferred to Buyer as of the Closing Date in any geographic area (including, without limitation, North, Central and South America) in which products of Seller are sold or are offered for sale by Buyer; Seller and the Shareholder recognize that the offer and sale of the products of Seller will be worldwide in scope in that Buyer will directly advertise and solicit business from customers wherever they may be found; (ii) Neither Seller nor the Shareholder will at any time disclose to other than Buyer or any of Buyer's affiliates, or use, any proprietary information relating to Seller, whether or not such information is embodied in writing or other physical form, except for any such proprietary information which is or becomes publicly available through no fault of Seller or the Shareholder, in which case Seller or the Principal Shareholder may disclose to the extent required by applicable law. For purposes of this Agreement, the phrase "proprietary information" means all information which is known only to an employee, former employee or consultant of or other person in a confidential relationship with Seller or any of its affiliates and which relates to specific technical matters concerning Seller, such as, without limiting the generality of the foregoing, devices, formulae, components, patterns or materials or machines for manufacturing, testing, building or product development, sales or financing procedures or methods of Seller or any of its affiliates or which relates to specific business matters concerning Seller such as, without limiting the generality of the foregoing, the identity of suppliers, customers or contractors of Seller or its affiliates; (iii) Seller and the Shareholder recognize that all documents and objects containing or reflecting any proprietary information relating to Seller, whether developed by Seller or by someone else for Seller or any of its affiliates, will be after the Closing Date the respective exclusive property of Buyer or of such of its affiliates, as the case may be; and (iv) Neither Seller nor the Shareholder will recruit any employees who accept employment with Buyer who were formerly employed by Seller, except with the consent of Buyer, which shall not be unreasonably withheld. (b) In the event that a court of competent jurisdiction holds that Parent or Buyer breached the provisions of any of the Agreements, including the Employment Agreement, the restrictions contained in this covenant as described in Section 13 herein shall automatically terminate. (c) Notwithstanding anything to the contrary, in the event of any material breach, violation or default by: Buyer or Parent of the provisions of this Asset Purchase Agreement, or by Parent of the provisions of the Employment Letter Agreement between Parent and Shareholder, or by Parent of the provisions of the Lease Agreement between Shareholder and Parent, Seller and Shareholder shall be released and relieved of any and all duties and obligations arising under Section 13 of this Agreement.
Appears in 1 contract
Covenant Against Competition. Each of Parent and Seller acknowledge that (ai) As a further inducement to Buyer to ---------------------------- purchase the assets principal business of Seller hereunderis the Business; (ii) Seller is one of a limited number of Persons who have developed the Business; (iii) the Business is, in part, national and international in scope; (iv) Parent's ownership of Seller has given and will continue to give Parent access to the confidential and business affairs and proprietary information of Seller not readily available to the public (including Seller's technology, methods of doing business and supplier and customer information) (collectively, "Confidential Seller Information"); (v) such information is the property of Seller and that the Shareholder agree jointly continued success of Seller depends in large part on keeping this information from becoming known to its competitors; (vi) the agreements and not severally that (except covenants of each of Parent and Seller contained in this Section 9.4 are essential to the extent otherwise provided in subsection (b) hereof) business and goodwill of Buyer and Seller; and Buyer would not have entered into this Agreement and purchased the Assets but for the period from the Closing Date through the two (2) year anniversary covenants and agreements set forth in this Section 9.4. Accordingly, each of the Closing DateParent and Seller covenants and agrees that:
(i) During the period commencing on the Closing Date and ending 5 years following the Closing Date (the "Restricted Period"), neither Parent, Seller and or any of their Subsidiaries or Affiliates (but excluding any individual who is not employed by any of the Shareholder will not in any wayforegoing) (each, a "Restricted Person") shall (A) directly or indirectly, own, operate, manage, operate or control any enterprise which engages control, participate in, consult with, advise, permit its or otherwise carries onhis name to be used by, provide services for, lease, or in any manner engage in (including by its or himself, in association with any Person, or through any Person) any business activity that manufactures or sells any products or provides any services which may be used as substitutes for or are otherwise in competition with any products or services in the Business or the business of Seller transferred to Buyer anywhere in the United States or in any other place where Buyer, Seller, or their respective Subsidiaries conduct business, as such businesses exist or are proposed as of the Closing Date or logical extensions thereof (collectively, "Covered Activities"); or (B) become interested in any geographic area such Person which engages in any Covered Activities as a partner, shareholder, principal, agent, consultant or in any other relationship or capacity; provided, however, that notwithstanding the above, a Restricted Person may own, directly or indirectly, solely as an investment, securities of any such Person which are traded on any national securities exchange or NASDAQ if the Covered Person is not a controlling person of, or a member of a group which controls, such Person, does not, directly or indirectly, own five percent (including, without limitation, North, Central 5%) or more of any class of securities of such Person and South America) has no active participation in which products the business of Seller are sold or are offered for sale by Buyer; Seller and the Shareholder recognize that the offer and sale of the products of Seller will be worldwide in scope in that Buyer will directly advertise and solicit business from customers wherever they may be found;such Person.
(ii) Neither At all times after the date hereof, each Restricted Person shall keep secret and retain in strictest confidence, and shall not use for his benefit or the benefit of others, all Confidential Seller nor Information including information with respect to (i) prospective facilities, (ii) sales figures, (iii) profit or loss figures, and (iv) customers, clients, suppliers, sources of supply and customer lists and shall not disclose such Confidential Seller Information to anyone outside of Buyer except with the Shareholder will express written consent of the Buyer and except for Confidential Company Information which is at any the time disclose of receipt or thereafter becomes publicly known through no wrongful act of a Restricted Person. The Restricted Person shall deliver to other than Buyer or any of Buyer's affiliateson the Closing Date, or use, any proprietary information relating upon the termination of the Transition Services Agreement (to Seller, whether or not the extent retaining such information is embodied in writing or necessary for Seller to perform its obligations under the Transition Services Agreement), all memoranda, notes, plans, records, reports, computer tapes, printouts and software and other physical formdocuments and data (and copies thereof) relating to the Confidential Seller Information, except for any such proprietary information which is or becomes publicly available through no fault of Seller Work Product (as defined below) or the Shareholder, in Business which case Seller it may then possess or the Principal Shareholder may disclose to the extent required by applicable law. For purposes of this Agreement, the phrase "proprietary information" means all information which is known only to an employee, former employee or consultant of or other person in a confidential relationship with Seller or any of have under its affiliates and which relates to specific technical matters concerning Seller, such as, without limiting the generality of the foregoing, devices, formulae, components, patterns or materials or machines for manufacturing, testing, building or product development, sales or financing procedures or methods of Seller or any of its affiliates or which relates to specific business matters concerning Seller such as, without limiting the generality of the foregoing, the identity of suppliers, customers or contractors of Seller or its affiliates;control.
(iii) Seller and During the Shareholder recognize that all documents and objects containing Restricted Period, each Restricted Person shall not, without the prior written consent of the Buyer, directly or reflecting indirectly, (i) induce or attempt to induce any proprietary information relating employee of Buyer to Sellerleave the employ of Buyer, whether developed by Seller or by someone else for Seller or employ any of its affiliates, will be after the Closing Date the respective exclusive property employee of Buyer or in any other way interfere with the relationship between Buyer and any employee of Buyer, (ii) hire any person within two years of the last day such person was an employee of its affiliatesBuyer or (iii) induce or attempt to induce any customer, as supplier, licensee, licensor, franchisee or other business relation of Buyer to cease doing business with Buyer, or in any way interfere with the case may be; andrelationship between any such customer, supplier, licensee or business relation and Buyer (including making any disparaging statements or communications about Buyer).
(iv) Neither All inventions, innovations, improvements, developments, methods, designs, analyses, drawings, reports, characters, props, molds and all similar or related information (whether or not patentable) which relate to the Business or anticipated business, research and development or existing or future products or services and which are conceived, developed or made by an employee of, or a consultant to, Seller nor (collectively, "Work Product") belong to Buyer. Each Restricted Person shall promptly disclose such Work Product to the Shareholder will recruit any employees who accept employment with Buyer who were formerly employed and perform all actions requested by Sellerthe Buyer (whether on or after the Closing Date) to establish and confirm such ownership (including assignments, except with the consent consents, powers of Buyer, which shall not be unreasonably withheldattorney and other instruments).
(bv) In (A) the event that a court of competent jurisdiction holds that Parent or Buyer breached the provisions of any of the Agreements, including the Employment Agreement, the restrictions contained in this covenant as described covenants set forth in Section 13 9.4(a) are reasonable in geographical and temporal scope and in all other respects, (B) Buyer would not have entered into this Agreement but for the covenants of each Restricted Person contained herein, and (C) the covenants contained herein shall automatically terminatehave been made in order to induce Buyer to enter into this Agreement and purchase the Assets from which Seller will receive substantial benefit.
(cvi) Notwithstanding anything to If, at the contrary, in the event time of any material breach, violation or default by: Buyer or Parent enforcement of the provisions of this Asset Purchase Agreementcovenants contained in Section 9.4 (a)(i), a court shall hold that the duration, scope or area restrictions stated therein are unreasonable under circumstances then existing, the parties agree that the maximum duration, scope, or by Parent of the provisions of the Employment Letter Agreement between Parent and Shareholder, or by Parent of the provisions of the Lease Agreement between Shareholder and Parent, Seller and Shareholder area reasonable under such circumstances shall be released and relieved of any and all duties and obligations arising under Section 13 of this Agreementsubstituted for the stated duration, scope or area.
Appears in 1 contract
Samples: Asset Purchase Agreement (Aqua Care Systems Inc /De/)
Covenant Against Competition. 2.1 Employee acknowledges that the services to be performed under this Agreement are of a special, unique, unusual, extraordinary and intellectual character, that the business of the Company is national in scope, that its products are marketed throughout the United States, Canada 'and internationally (a) the "Market Area"), and that the Company competes with other organizations that are or could be located in any part of the Market Area As a further an inducement for Company to Buyer to ---------------------------- purchase enter into the assets Employment Agreement and in consideration of Seller the employment of Employee and the severance pay, benefits and in consideration of continued employment by the Company. Employee hereby covenants and agrees that Employee shall not during the Employment Period, except in the course of Employee's employment hereunder, Seller and the Shareholder agree jointly and not severally that for a period of twelve (except to the extent otherwise provided in subsection (b12) hereof) for the period from the Closing Date through the two (2) year anniversary of the Closing Date:
(i) Seller and the Shareholder will not in any waymonths thereafter, directly or indirectlyindirectly engage or invest in, own, manage, operate operate, control or participate in the ownership, management, operation or control of, be employed, associated or in any enterprise which engages in, manner connected with or otherwise carries onrender services or advice to, any business activity whose products or activities compete In whole or in competition part with the business of Seller transferred to Buyer as Business Activities of the Closing Date in any geographic area (including, without limitation, North, Central and South America) Company within the Geographic Territories within the Market Area in which products of Seller are sold or are offered for sale by Buyer; Seller and the Shareholder recognize that the offer and sale of the products of Seller will be worldwide in scope in that Buyer will directly advertise and solicit business from customers wherever they may be found;
(ii) Neither Seller nor the Shareholder will Company at any time disclose during the Employment Period conducts its Business Activities; provided, however. that Employee may invest in up to (but not more than) four percent of any class of securities of any enterprise (but Without otherwise participating in the activities of such enterprise) if such securities are listed on any national or regional securities exchange or have been registered under Section 12(g) of the Securities Exchange Act of 1934.) If the location where the Company has engaged in Business Activities or provided services to customers is within an area in which gaming activities are regulated by a governmental (state, county, provincial, tribal, country, etc.) body the term "Geographic Territories" shall be all of the geographic area over which the applicable governmental body has jurisdiction.
2.2 During a period twelve (12) months immediately following the termination of Employee's employment, whether with or without cause, Employee shall notify Company in writing by U.S. Mail return receipt requested, within five days of, accepting employment with any other than Buyer employer (including self-employment) or otherwise participating in any activities prohibited by Section 2.1 above said notice shall include the name, address, and telephone number of the new employer(s), the date employment began, and the duties to be performed by Employee.
2.3 Employee further agrees that upon termination employment, whether with or without cause, Employee will notify any new employer, partner, associate or any of Buyer's affiliatesother person, firm or usecorporation with whom Employee becomes associated in any capacity Whatever, any proprietary information relating to Seller, whether or not such information is embodied in writing or other physical form, except for any such proprietary information which is or becomes publicly available through no fault of Seller or the Shareholder, in which case Seller or the Principal Shareholder may disclose to the extent required by applicable law. For purposes of this Agreement, the phrase "proprietary information" means all information which is known only to an employee, former employee or consultant of or other person in a confidential relationship with Seller or any of its affiliates and which relates to specific technical matters concerning Seller, such as, without limiting the generality of the foregoing, devices, formulae, components, patterns or materials or machines for manufacturing, testing, building or product development, sales or financing procedures or methods of Seller or any of its affiliates or which relates to specific business matters concerning Seller such as, without limiting the generality of the foregoing, the identity of suppliers, customers or contractors of Seller or its affiliates;
(iii) Seller and the Shareholder recognize that all documents and objects containing or reflecting any proprietary information relating to Seller, whether developed by Seller or by someone else for Seller or any of its affiliates, will be after the Closing Date the respective exclusive property of Buyer or of such of its affiliates, as the case may be; and
(iv) Neither Seller nor the Shareholder will recruit any employees who accept employment with Buyer who were formerly employed by Seller, except with the consent of Buyer, which shall not be unreasonably withheld.
(b) In the event that a court of competent jurisdiction holds that Parent or Buyer breached the provisions of any of the Agreements, including the Employment Agreement, the restrictions contained in this covenant as described in Section 13 herein shall automatically terminate.
(c) Notwithstanding anything to the contrary, in the event of any material breach, violation or default by: Buyer or Parent of the provisions of this Asset Purchase Agreement, or by Parent Agreement and that Company may give similar notice of the provisions of the Employment Letter Agreement between Parent and Shareholder, or by Parent of the provisions of the Lease Agreement between Shareholder and Parent, Seller and Shareholder shall be released and relieved of any and all duties and obligations arising under Section 13 of this Agreementit.
Appears in 1 contract
Samples: Employment Agreement (Secured Diversified Investment LTD)
Covenant Against Competition. (a) As a further inducement to an essential consideration for the obligations of Buyer to ---------------------------- purchase the assets of Seller hereunderunder this Agreement, Seller hereby agrees and the Shareholder agree jointly and not severally that (except to the extent otherwise provided in subsection (b) hereof) covenants that, for the a period from the Closing Date through the two (2) year anniversary of five years following the Closing Date:, without Buyer's written consent,
(i) neither Seller and nor any of its Affiliates other than a current member of the Shareholder will not Board of Directors of the Seller shall engage in any way, directly or indirectly, own, manage, operate or control any enterprise which engages in, or otherwise carries on, manner in any business activity in competition with the business Business of Seller transferred to Buyer as any Subsidiary or provide products or services of the Closing Date same general type as those provided by a Subsidiary, in any the geographic area (including, without limitation, North, Central and South America) areas in which the Subsidiaries have provided products of Seller are sold or are offered for sale by Buyerservices within one year before Closing; Seller and the Shareholder recognize that the offer and sale of the products of Seller will be worldwide in scope in that Buyer will directly advertise and solicit business from customers wherever they may be found;and
(ii) Neither neither Seller nor the Shareholder will at any time disclose to of its Affiliates other than Buyer a current member of the Board of Directors of the Seller shall hire, attempt to hire or assist any of Buyer's affiliates, or use, any proprietary information relating to Seller, whether or not such information is embodied in writing or other physical form, except for any such proprietary information which is or becomes publicly available through no fault of Seller or the Shareholder, in which case Seller or the Principal Shareholder may disclose to the extent required by applicable law. For purposes of this Agreement, the phrase "proprietary information" means all information which is known only to an employee, former employee or consultant of or other person in hiring or attempting to hire, or discouraging any person from accepting employment with a confidential relationship with Seller Subsidiary, or inducing to leave the employ of a Subsidiary, any employee or officer of a Subsidiary, or any person who was an employee or officer of its affiliates and which relates a Subsidiary within one year prior to specific technical matters concerning Seller, such as, without limiting the generality of the foregoing, devices, formulae, components, patterns or materials or machines for manufacturing, testing, building or product development, sales or financing procedures or methods of Seller or any of its affiliates or which relates to specific business matters concerning Seller such as, without limiting the generality of the foregoing, the identity of suppliers, customers or contractors of Seller or its affiliates;
(iii) Seller and the Shareholder recognize that all documents and objects containing or reflecting any proprietary information relating to Seller, whether developed by Seller or by someone else for Seller or any of its affiliates, will be after the Closing Date the respective exclusive property of Buyer or of such of its affiliates, as the case may be; and
(iv) Neither Seller nor the Shareholder will recruit any employees who accept employment with Buyer who were formerly employed by Seller, except with the consent of Buyer, which shall not be unreasonably withheldDate.
(b) In If Buyer believes Seller or any Affiliate has violated the event that a provisions of this Section 6.5, Buyer shall have the right to seek relief from any court of competent jurisdiction holds jurisdiction. Seller acknowledges that Parent or money damages alone will not adequately compensate Buyer breached the provisions of any of the Agreements, including the Employment Agreement, the restrictions contained in this covenant as described in Section 13 herein shall automatically terminate.
(c) Notwithstanding anything to the contrary, in the event of any material breach, violation or default by: Buyer or Parent a breach of the provisions covenants of this Asset Purchase Section. Therefore, Seller agrees that in addition to all remedies available at law, in equity or under this Agreement, or by Parent of the provisions of the Employment Letter Agreement between Parent and Shareholder, or by Parent of the provisions of the Lease Agreement between Shareholder and Parent, Seller and Shareholder Buyer shall be released and relieved of any and all duties and obligations arising under Section 13 entitled to injunctive relief for the enforcement of this Agreementcovenant. Seller agrees that the covenants in this Section are reasonable with respect to their duration, scope and geographical area. If, at the time of enforcement of this Section, a court should hold that the restrictions herein are unreasonable under the circumstances then existing or otherwise, the parties agree that the maximum duration, scope or geographical area legally permissible under such circumstances will be substituted for the duration, scope or area stated herein.
Appears in 1 contract
Samples: Stock Purchase Agreement (Tanknology Environmental Inc /Tx/)
Covenant Against Competition. 2.1 Employee acknowledges that the services to be performed under this Agreement are of a special, unique, unusual, extraordinary and intellectual character, that the business of the Company is national in scope, that its products are marketed throughout the United States, Canada and internationally (a) the "Market Area"), and that the Company competes with other organizations that are or could be located in any part of the Market Area. As a further an inducement for Company to Buyer to ---------------------------- purchase enter into the assets Employment Agreement and in consideration of Seller the employment of Employee and the severance pay, benefits and in consideration of continued employment by the Company, Employee hereby covenants and agrees that Employee shall not during the Employment Period, except in the course of Employee's employment hereunder, Seller and the Shareholder agree jointly and not severally that for a period of twelve (except to the extent otherwise provided in subsection (br2) hereof) for the period from the Closing Date through the two (2) year anniversary of the Closing Date:
(i) Seller and the Shareholder will not in any waymonths thereafter, directly or indirectlyindirectly engage or invest in, own, manage, operate operate, control or participate in the ownership, management, operation or control of, be employed, associated or in any enterprise which engages inmanner connected with, or otherwise carries onrender services or advice to, any business activity whose products or activities compete in competition whole or in part with the business of Seller transferred to Buyer as Business Activities of the Closing Date in any geographic area (includingCompany, without limitation, North, Central and South America) within the Geographic Territories within the Market Area in which products of Seller are sold or are offered for sale by Buyer; Seller and the Shareholder recognize that the offer and sale of the products of Seller will be worldwide in scope in that Buyer will directly advertise and solicit business from customers wherever they may be found;
(ii) Neither Seller nor the Shareholder will Company at any time disclose during the Employment Period conducts its Business Activities; provided, however, that Employee may invest in up to (but not more than) four percent of any class of securities of any enterprise (but without otherwise participating in the activities of such enterprise) if such securities are listed on any national or regional securities exchange or have been registered under Section 12(g) of the Securities Exchange Act of 1934.) If the location where the Company has engaged in Business Activities or provided services to customers is within an area in which gaming activities are regulated by a governmental (state, county, provincial, tribal, country, etc.) body the term "Geographic Territories" shall be all of the geographic area over which the applicable governmental body has jurisdiction.
2.2 During a period twelve (12) months immediately following the termination of Employee's employment, whether with or without cause, Employee shall notify Company in writing by U.S. Mail, return receipt requested, within five days of accepting employment with any other than Buyer employer (including self-employment) or otherwise participating in any activities prohibited by Section 2.1 above. Said notice shall include the name, address, and telephone number of the new employer(s), the date employment began, and the duties to be performed by Employee.
2.3 Employee further agrees that upon termination employment, whether with or without cause, Employee will notify any new employer, partner, associate or any of Buyer's affiliatesother person, .firm or usecorporation with whom Employee becomes associated in any capacity whatever, any proprietary information relating to Seller, whether or not such information is embodied in writing or other physical form, except for any such proprietary information which is or becomes publicly available through no fault of Seller or the Shareholder, in which case Seller or the Principal Shareholder may disclose to the extent required by applicable law. For purposes of this Agreement, the phrase "proprietary information" means all information which is known only to an employee, former employee or consultant of or other person in a confidential relationship with Seller or any of its affiliates and which relates to specific technical matters concerning Seller, such as, without limiting the generality of the foregoing, devices, formulae, components, patterns or materials or machines for manufacturing, testing, building or product development, sales or financing procedures or methods of Seller or any of its affiliates or which relates to specific business matters concerning Seller such as, without limiting the generality of the foregoing, the identity of suppliers, customers or contractors of Seller or its affiliates;
(iii) Seller and the Shareholder recognize that all documents and objects containing or reflecting any proprietary information relating to Seller, whether developed by Seller or by someone else for Seller or any of its affiliates, will be after the Closing Date the respective exclusive property of Buyer or of such of its affiliates, as the case may be; and
(iv) Neither Seller nor the Shareholder will recruit any employees who accept employment with Buyer who were formerly employed by Seller, except with the consent of Buyer, which shall not be unreasonably withheld.
(b) In the event that a court of competent jurisdiction holds that Parent or Buyer breached the provisions of any of the Agreements, including the Employment Agreement, the restrictions contained in this covenant as described in Section 13 herein shall automatically terminate.
(c) Notwithstanding anything to the contrary, in the event of any material breach, violation or default by: Buyer or Parent of the provisions of this Asset Purchase Agreement, or by Parent Agreement and that Company may give similar notice of the provisions of the Employment Letter Agreement between Parent and Shareholder, or by Parent of the provisions of the Lease Agreement between Shareholder and Parent, Seller and Shareholder shall be released and relieved of any and all duties and obligations arising under Section 13 of this Agreementit.
Appears in 1 contract
Covenant Against Competition. (a) As a further inducement to Buyer to ---------------------------- purchase the assets of Seller hereunder, Seller and the Shareholder agree jointly and not severally that (except to the extent otherwise provided in subsection (b) hereof) an essential consideration for the period from the Closing Date through the two (2) year anniversary obligations of the Closing Dateparties under this Agreement, Buyer and Seller hereby agree and covenant, subject to Section 6.4(c) below, as follows:
(i) for a period of five years following the Closing Date, in the United States, Seller and the Shareholder will and/or its Affiliates shall not in any way, directly develop or indirectly, own, manage, operate or control any enterprise which engages in, or otherwise carries on, any business activity in competition with the business of Seller transferred license software that provides Statistical Inventory Reconciliation certified pursuant to Buyer as protocols of the Closing Date in United States Environmental Protection Agency ("Certified SIR"), nor will it enter into joint ventures, affiliations or other agreements with third parties to develop, market or sell Certified SIR; provided, that this provision shall not restrict Seller and/or its Affiliates from (A) developing, marketing or distributing automatic tank gauges, tank level monitors or other equipment based at an underground storage tank site that offers a Certified SIR product as an integral component ("Imbedded SIR"), (B) becoming affiliated or entering into joint ventures with any geographic area other person selling and/or distributing products with Imbedded SIR, (includingC) remotely monitoring products with Imbedded SIR or (D) developing products for inventory purposes not associated with Certified SIR. In the event Seller and/or its Affiliates develops any products pursuant to (A) above, without limitation, North, Central and South America) in which products of Seller are sold or are offered for sale by Buyer; Seller and the Shareholder recognize that the offer and sale of the products of Seller will give Buyer the first right of refusal to license the Certified SIR system to be worldwide imbedded in scope such products and/or for any statistical evaluation services in that Buyer will directly advertise and solicit business from customers wherever they may be found;connection therewith.
(ii) Neither Seller nor For a period of five years after the Shareholder will at Closing Date, in the United States, Buyer and/or its Affiliates shall not own or operate vehicles for servicing underground storage tank sites ("Site Services"), other than for the limited purpose of installing or marketing in-tank gauges which are manufactured or distributed by Buyer; provided that this provisions shall not restrict Buyer and/or its Affiliates from (A) marketing or distributing any time disclose to Site Services of any person other than Buyer or any of Buyer's affiliates, or use, any proprietary information relating to Seller, whether or not such information is embodied in writing or other physical form, except for any such proprietary information which is or becomes publicly available through no fault of Seller or the Shareholder, in which case Seller or the Principal Shareholder may disclose to the extent required by applicable law. For purposes of this Agreement, the phrase "proprietary information" means all information which is known only to an employee, former employee or consultant of or other person in a confidential relationship with Seller or any of its affiliates and which relates to specific technical matters concerning Seller, such as, without limiting the generality of the foregoing, devices, formulae, components, patterns or materials or machines for manufacturing, testing, building or product development, sales or financing procedures or methods of Seller or any of its affiliates or which relates to specific business matters concerning Seller such as, without limiting the generality of the foregoing, the identity of suppliers, customers or contractors of Seller or its affiliates;
(iii) Seller and the Shareholder recognize that all documents and objects containing or reflecting any proprietary information relating to Seller, whether developed by Seller or by someone else for Seller or any of its affiliates, will be after the Closing Date the respective exclusive property of Buyer or of such of its affiliates, as the case may be; and
(iv) Neither Seller nor the Shareholder will recruit any employees who accept employment with Buyer who were formerly employed by Seller, except with the consent Affiliate of Buyer, (B) becoming affiliated or entering into joint ventures with any other person which shall not be unreasonably withheldowns or operates vehicles for Site Services or (C) operating remote monitoring systems and utilizing any other person's Site Services for responses.
(b) In If either party believes the event that a other party or any Affiliate of the other party has violated the provisions of Section 6.4(a), such party shall have the right to seek relief from any court of competent jurisdiction holds jurisdiction. The parties acknowledge that Parent or Buyer breached money damages alone will not provide adequate compensation in the provisions event of any a breach of the Agreementscovenants of this Section. Therefore, including the Employment parties agree that in addition to all remedies available at law, in equity or under this Agreement, the restrictions contained non-breaching party shall be entitled to injunctive relief for the enforcement of this covenant. The parties agree that the covenants in this covenant as described in Section 13 are reasonable with respect to their duration, scope and geographical area. If, at the time of enforcement of this Section, a court should hold that the restrictions herein shall automatically terminateare unreasonable under the circumstances then existing or otherwise, the parties agree that the maximum duration, scope or geographical area legally permissible under such circumstances will be substituted for the duration, scope or area stated herein.
(c) Notwithstanding anything Section 6.4(a)(ii):
(i) For a period of twelve months after the Closing Date, Toxguard Systems, Inc. a Nevada corporation and a majority-owned subsidiary of Buyer ("Toxguard"), shall not be prohibited by the terms of this Agreement from conducting its business as conducted at the Closing Date, provided that Toxguard shall not own or operate any vehicles for the provision of Site Services not owned and operated at the Closing Date except as specifically permitted pursuant to Section 6.4(a)(ii).
(ii) Seller hereby recognizes and acknowledges that Buyer is considering the acquisition of the business (the "Target Business") of the person set forth on Schedule 6.4 ("Target"), either through the purchase of substantially all of the assets or all of the issued and outstanding stock of Target, and that certain activities in connection with the Target Business would be in violation of Section 6.4(a)(ii) if such activities were conducted by Buyer or an Affiliate of Buyer. Seller hereby consents to the contrary, in acquisition by Buyer of the event of any material breach, violation or default by: Buyer or Parent of Target Business and agrees that the provisions of this Asset Purchase Agreement, Section 6.4(a)(ii) shall not restrict Buyer or by Parent Target from conducting the Target Business as conducted at the date of the provisions acquisition of the Employment Letter Agreement between Parent Target Business by Buyer (the "Target Acquisition Date") for a period of 3 years from the Target Acquisition Date; provided that neither Buyer nor Target shall (A) enter into any contracts (not including any renewals or extensions of existing contracts) for the provision of Site Services after the Target Acquisition Date, (B) provide Site Services in any geographical area not served prior to the date of Closing or (C) own or operate any vehicles for the provision of Site Services in addition to the number of vehicles so owned and Shareholderoperated at the date of Closing, in any case whether in connection with the Target Business or by Parent of the provisions of the Lease Agreement between Shareholder and Parent, Seller and Shareholder shall be released and relieved of any and all duties and obligations arising under Section 13 of this Agreementotherwise.
Appears in 1 contract
Covenant Against Competition. (a) As a further inducement to Buyer to ---------------------------- purchase the assets of Seller hereunder, Seller and the Shareholder Principal Shareholders agree jointly and not severally that (except to the extent otherwise provided in subsection (b) hereof) hereof for the period from the Closing Date through the two (2) year tenth anniversary of the Closing Date:
(i) Seller and the Shareholder Principal Shareholders will not in any way, directly or indirectly, own, manage, operate or control any enterprise which engages in, or otherwise carries on, any business activity in competition with the business of Seller transferred to Buyer as of the Closing Date in any geographic area (including, without limitation, North, Central and South America) in which products of Seller are sold or are offered for sale by Buyer; Seller and the Shareholder Principal Shareholders recognize that the offer and sale of the products of Seller will be worldwide in scope in that Buyer will directly advertise and solicit business from customers wherever they may be found;
(ii) Neither Seller nor the Shareholder Principal Shareholders will at any time disclose to other than Buyer or any of Buyer's affiliates, or use, any proprietary information relating to Seller, whether or not such information is embodied in writing or other physical form, except for any such proprietary information which is or becomes publicly available through no fault of Seller or the Shareholder, in which case Seller or the Principal Shareholder may disclose to the extent required by applicable law. For purposes of this Agreement, the phrase "proprietary information" means all information which is known only to an employee, former employee or consultant of or other person in a confidential relationship with Seller or any of its affiliates and which relates to specific technical matters concerning Seller, such as, without limiting the generality of the foregoing, devices, formulae, components, patterns or materials or machines for manufacturing, testing, building or product development, sales or financing procedures or methods of Seller or any of its affiliates or which relates to specific business matters concerning Seller such as, without limiting the generality of the foregoing, the identity of suppliers, customers or contractors of Seller or its affiliates;
(iii) Seller and the Shareholder Principal Shareholders recognize that all documents and objects containing or reflecting any proprietary information relating to Seller, whether developed by Seller or by someone else for Seller or any of its affiliates, will be after the Closing Date the respective exclusive property of Buyer or of such of its affiliates, as the case may be; and
(iv) Neither Seller nor the Shareholder Principal Shareholders will recruit any employees who accept employment with Buyer who were formerly employed by Seller, except with the consent of Buyer, which shall not be unreasonably withheld.
(b) In the event that a court of competent jurisdiction holds that Parent or Buyer breached the provisions of any of the Agreements, including the Employment Agreement, the restrictions contained in this covenant as described in Section 13 herein shall automatically terminate.
(c) Notwithstanding anything to the contrary, contrary contained in the event of any material breach, violation or default by: Buyer or Parent of the provisions of this Asset Purchase Agreement, or by Parent of the provisions of the Employment Letter Agreement between Parent and Shareholder, or by Parent of the provisions of the Lease Agreement between Shareholder and Parentsubsection (a) above, Seller and Shareholder shall be released and relieved the Principal Shareholders may sell its old industrial glove inventory of any and all duties and obligations arising under Section 13 of this Agreementthe business transferred to Buyer that is not purchased by Buyer at the Closing for a period not greater than ninety (90) days after the Closing to anyone except for purchasers who are in the Buyer's business or purchasers who Seller or the Principal Shareholders have reason to know may resell to such purchasers.
Appears in 1 contract
Covenant Against Competition. (a) As a further inducement to Buyer to ---------------------------- purchase the assets of Seller hereunder, Seller and the Shareholder agree jointly and not severally that (except to the extent otherwise provided in subsection (b) hereof) an essential consideration for the period from the Closing Date through the two (2) year anniversary obligations of the Closing Dateparties under this Agreement, Buyer and Seller hereby agree and covenant, subject to Section 6.4(c) below, as follows:
(i) for a period of five years following the Closing Date, in the United States, Seller and the Shareholder will and/or its Affiliates shall not in any way, directly develop or indirectly, own, manage, operate or control any enterprise which engages in, or otherwise carries on, any business activity in competition with the business of Seller transferred license software that provides Statistical Inventory Reconciliation certified pursuant to Buyer as protocols of the Closing Date in any geographic area United States Environmental Protection Agency (including"Certified SIR"), without limitationnor will it enter into joint ventures, Northaffiliations or other agreements with third parties to develop, Central and South Americamarket or sell Certified SIR; provided, that this provision shall not restrict Seller and/or its Affiliates from (A) in which products of Seller are sold developing, marketing or are offered for sale by Buyer; Seller and the Shareholder recognize that the offer and sale of the products of Seller will be worldwide in scope in that Buyer will directly advertise and solicit business from customers wherever they may be found;distributing automatic tank gauges, tank level monitors or other equipment based at an underground storage
(ii) Neither Seller nor For a period of five years after the Shareholder will at Closing Date, in the United States, Buyer and/or its Affiliates shall not own or operate vehicles for servicing underground storage tank sites ("Site Services"), other than for the limited purpose of installing or marketing in-tank gauges which are manufactured or distributed by Buyer; provided that this provisions shall not restrict Buyer and/or its Affiliates from (A) marketing or distributing any time disclose to Site Services of any person other than Buyer or any of Buyer's affiliates, or use, any proprietary information relating to Seller, whether or not such information is embodied in writing or other physical form, except for any such proprietary information which is or becomes publicly available through no fault of Seller or the Shareholder, in which case Seller or the Principal Shareholder may disclose to the extent required by applicable law. For purposes of this Agreement, the phrase "proprietary information" means all information which is known only to an employee, former employee or consultant of or other person in a confidential relationship with Seller or any of its affiliates and which relates to specific technical matters concerning Seller, such as, without limiting the generality of the foregoing, devices, formulae, components, patterns or materials or machines for manufacturing, testing, building or product development, sales or financing procedures or methods of Seller or any of its affiliates or which relates to specific business matters concerning Seller such as, without limiting the generality of the foregoing, the identity of suppliers, customers or contractors of Seller or its affiliates;
(iii) Seller and the Shareholder recognize that all documents and objects containing or reflecting any proprietary information relating to Seller, whether developed by Seller or by someone else for Seller or any of its affiliates, will be after the Closing Date the respective exclusive property of Buyer or of such of its affiliates, as the case may be; and
(iv) Neither Seller nor the Shareholder will recruit any employees who accept employment with Buyer who were formerly employed by Seller, except with the consent Affiliate of Buyer, (B) becoming affiliated or entering into joint ventures with any other person which shall not be unreasonably withheldowns or operates vehicles for Site Services or (C) operating remote monitoring systems and utilizing any other person's Site Services for responses.
(b) In If either party believes the event that a other party or any Affiliate of the other party has violated the provisions of Section 6.4(a), such party shall have the right to seek relief from any court of competent jurisdiction holds jurisdiction. The parties acknowledge that Parent or Buyer breached money damages alone will not provide adequate compensation in the provisions event of any a breach of the Agreements, including the Employment Agreement, the restrictions contained in this covenant as described in Section 13 herein shall automatically terminate.covenants of this
(c) Notwithstanding anything Section 6.4(a)(ii):
(i) For a period of twelve months after the Closing Date, Toxguard Systems, Inc. a Nevada corporation and a majority-owned subsidiary of Buyer ("Toxguard"), shall not be prohibited by the terms of this Agreement from conducting its business as conducted at the Closing Date, provided that Toxguard shall not own or operate any vehicles for the provision of Site Services not owned and operated at the Closing Date except as specifically permitted pursuant to Section 6.4(a)(ii).
(ii) Seller hereby recognizes and acknowledges that Buyer is considering the contraryacquisition of the business (the "Target Business") of the person set forth on Schedule 6.4 ("Target"), either through the purchase of substantially all of the assets or all of the issued and outstanding stock of Target, and that certain activities in connection with the event Target Business would be in violation of any material breach, violation or default by: Section 6.4(a)(ii) if such activities were conducted by Buyer or Parent of the provisions of this Asset Purchase Agreement, or by Parent of the provisions of the Employment Letter Agreement between Parent and Shareholder, or by Parent of the provisions of the Lease Agreement between Shareholder and Parent, Seller and Shareholder shall be released and relieved of any and all duties and obligations arising under Section 13 of this Agreement.an Affiliate of
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Covenant Against Competition. (a) As a further inducement to an essential consideration for the obligations of Buyer to ---------------------------- purchase the assets of Seller hereunderunder this Agreement, Seller hereby agrees and the Shareholder agree jointly and not severally that (except to the extent otherwise provided in subsection (b) hereof) covenants that, for the a period from the Closing Date through the two (2) year anniversary of five years following the Closing Date:, without Buyer's written consent,
(i) neither Seller and nor any of its Affiliates other than a current member of the Shareholder will not Board of Directors of the Seller shall engage in any way, directly or indirectly, own, manage, operate or control any enterprise which engages in, or otherwise carries on, manner in any business activity in competition with the business Business of Seller transferred to Buyer as of the Closing Date in any geographic area (including, without limitation, North, Central and South America) in which Subsidiary or provide products of Seller are sold or are offered for sale by Buyer; Seller and the Shareholder recognize that the offer and sale of the products of Seller will be worldwide in scope in that Buyer will directly advertise and solicit business from customers wherever they may be found;services of
(ii) Neither neither Seller nor the Shareholder will at any time disclose to of its Affiliates other than Buyer a current member of the Board of Directors of the Seller shall hire, attempt to hire or assist any of Buyer's affiliates, or use, any proprietary information relating to Seller, whether or not such information is embodied in writing or other physical form, except for any such proprietary information which is or becomes publicly available through no fault of Seller or the Shareholder, in which case Seller or the Principal Shareholder may disclose to the extent required by applicable law. For purposes of this Agreement, the phrase "proprietary information" means all information which is known only to an employee, former employee or consultant of or other person in hiring or attempting to hire, or discouraging any person from accepting employment with a confidential relationship with Seller Subsidiary, or inducing to leave the employ of a Subsidiary, any employee or officer of a Subsidiary, or any person who was an employee or officer of its affiliates and which relates a Subsidiary within one year prior to specific technical matters concerning Seller, such as, without limiting the generality of the foregoing, devices, formulae, components, patterns or materials or machines for manufacturing, testing, building or product development, sales or financing procedures or methods of Seller or any of its affiliates or which relates to specific business matters concerning Seller such as, without limiting the generality of the foregoing, the identity of suppliers, customers or contractors of Seller or its affiliates;
(iii) Seller and the Shareholder recognize that all documents and objects containing or reflecting any proprietary information relating to Seller, whether developed by Seller or by someone else for Seller or any of its affiliates, will be after the Closing Date the respective exclusive property of Buyer or of such of its affiliates, as the case may be; and
(iv) Neither Seller nor the Shareholder will recruit any employees who accept employment with Buyer who were formerly employed by Seller, except with the consent of Buyer, which shall not be unreasonably withheldDate.
(b) In If Buyer believes Seller or any Affiliate has violated the event that a provisions of this Section 6.5, Buyer shall have the right to seek relief from any court of competent jurisdiction holds jurisdiction. Seller acknowledges that Parent or money damages alone will not adequately compensate Buyer breached the provisions of any of the Agreements, including the Employment Agreement, the restrictions contained in this covenant as described in Section 13 herein shall automatically terminate.
(c) Notwithstanding anything to the contrary, in the event of any material breach, violation or default by: Buyer or Parent a breach of the provisions covenants of this Asset Purchase Section. Therefore, Seller agrees that in addition to all remedies available at law, in equity or under this Agreement, or by Parent of the provisions of the Employment Letter Agreement between Parent and Shareholder, or by Parent of the provisions of the Lease Agreement between Shareholder and Parent, Seller and Shareholder Buyer shall be released and relieved of any and all duties and obligations arising under Section 13 entitled to injunctive relief for the enforcement of this Agreementcovenant. Seller agrees that the covenants in this Section are reasonable with respect to their duration, scope and geographical area. If, at the time of enforcement of this Section, a court should hold that the restrictions herein are unreasonable under the circumstances then existing or otherwise, the parties agree that the maximum duration, scope or geographical area legally permissible under such circumstances will be substituted for the duration, scope or area stated herein.
Appears in 1 contract
Covenant Against Competition. The Covered Person acknowledges that (a1) As a further inducement to the principal business of Buyer to ---------------------------- purchase the assets of Seller hereunder, Seller and the Shareholder agree jointly Company (as successor in interest to the Stock the Company) is the manufacture and not severally that sale of investment-cast products, including golf club heads, (collectively, the "Company Business"); (2) the Covered Person is one of a limited number of Persons who have developed the Company Business; (3) the Company Business is, in part, national and international in scope; the Covered Person's work for the Company has given and will continue to give him access to the confidential affairs and proprietary information of the Buyer and the Company; the information, observations and data disclosed to, developed by or obtained by him while employed by the Company or any of its Subsidiaries (collectively, the "Consolidated Company") concerning the business or affairs of any member of the Consolidated Company (including, without limitation, the Company's technology, methods of doing business and supplier and customer information, but excluding any personal biographical information or personal diaries, payroll records, appointment books or calendars, except to the extent otherwise provided any Confidential Information regarding the Company is contained therein) (collectively, "Confidential Company Information") are the property of Buyer and the Company or such other member of the Consolidated Company and that the continued success of the Company Group depends in subsection (b) hereof) large part on keeping this information from becoming known to its competitors; the agreements and covenants of the Covered Person contained in this Section 5.6 are essential to the business and goodwill of Buyer and the Company; and Buyer would not have entered into this Agreement and purchased the Stock but for the period from covenants and agreements set forth in this Section 5.6. Accordingly, the Closing Date through the two (2) year anniversary of the Closing DateCovered Person covenants and agrees that:
(i) Seller and During the Shareholder will period commencing on the date hereof ending three (3) years following the Closing Date (the "Restricted Period"), the Covered Person shall not in any waythe United States of America, directly or indirectly, own, operate, manage, operate or control any enterprise which engages control, participate in, consult with, advise, permit his name to be used by, provide services for, lease, or otherwise carries onin any manner engage (including by himself, in association with any Person, or through any Person) in (A) the Company Business; or (B) in any business activity which manufactures or sells any products or provides any services which may be used as substitutes for or are otherwise in competition with any products or services in the business of Seller transferred to Buyer the Consolidated Company as such businesses exist or are proposed as part of the Company's plans as of the Closing Date or the date of this Agreement, or logical extensions thereof in the area of golf club manufacture, assembly or distribution (collectively, "Covered Activities"); or (C) become interested in any geographic area such Person which engages in any Covered Activities (other than Buyer) as a partner, shareholder, principal, agent, consultant or in any other relationship or capacity; provided, however, that notwithstanding the above, the Covered Person may own, directly or indirectly, solely as an investment, securities of any such Person which are traded on any national securities exchange or NASDAQ if the Covered Person is not a controlling person of, or a member of a group which controls, such Person, does not, directly or indirectly, own three percent (3%) or more of any class of securities of such Person and has no active participation in the business of such Person.
(ii) At all times after the date hereof, the Covered Person shall keep secret and retain in strictest confidence, and shall not use for his benefit or the benefit of others, except in connection with the business and affairs of Buyer, the Company and their affiliates, all Confidential Company Information including, without limitation, information with respect to (A) prospective facilities, (B) sales figures, (C) profit or loss figures, and (D) customers, clients, suppliers, sources of supply and customer lists and shall not disclose such Confidential Company Information to anyone outside of Buyer, the Company and their Affiliates, advisors, financiers and others having a similar confidential relationship to the Company, except with the express written consent of the Buyer and except for Confidential Company Information which is at the time of receipt or thereafter becomes publicly known through no wrongful act of the Covered Person. The Covered Person shall deliver to Buyer on the Closing Date, or at any other time Buyer may request, all memoranda, notes, plans, records, reports, computer tapes, printouts and software and other documents and data (and copies thereof) relating to the Confidential Company Information, Work Product (as defined below) or the business of the Company or any Subsidiary which he may then possess or have under his control.
(iii) During the two-year period following the Closing Date the Covered Person shall not, without the prior written consent of the Buyer, directly or indirectly, (A) induce or attempt to induce any employee of Buyer, the Company or any Subsidiary to leave the employ of Buyer, the Company or such Subsidiary, or in any way interfere with the relationship between Buyer, the Company or any Subsidiary and any employee thereof, (B) hire any person within two years of the last day such person was an employee of Buyer, the Company or any Subsidiary other than any such person terminated by the Company or the Subsidiary, other than for cause or (C) induce or attempt to induce any customer, supplier, licensee, licensor, franchisee or other business relation of Buyer, the Company or any Subsidiary to cease doing business with or otherwise materially alter its relationship with Buyer, the Company or such Subsidiary, or make any disparaging statements or communications about Buyer or its Subsidiaries.
(iv) All inventions, innovations, improvements, developments, methods, designs, analyses, drawings, reports, characters, props, molds and all similar or related information (whether or not patentable) which relate to the Company's or any of its Subsidiaries' actual or anticipated business, research and development or existing or future products or services and which are conceived, developed or made by the Covered Person while an employee of, or a consultant to, the Company or its Subsidiaries (collectively, "Work Product") belong to the Company and its Subsidiaries. Covered Person shall promptly disclose such Work Product to the Buyer and perform all actions requested by the Buyer (whether on or after the Closing Date) to establish and confirm such ownership (including, without limitation, Northassignments, Central consents, powers of attorney and South Americaother instruments).
(v) That (A) the covenants set forth in which products of Seller Section 5.6(a) are sold or are offered reasonable in geographical and temporal scope and in all other respects, (B) Buyer would not have entered into this Agreement but for sale by Buyer; Seller and the Shareholder recognize that the offer and sale covenants of the products of Seller Covered Person contained herein, and (C) the covenants contained herein have been made in order to induce Buyer to enter into this Agreement and purchase the Stock from which Covered Person will be worldwide in scope in that Buyer will directly advertise and solicit business from customers wherever they may be found;
(ii) Neither Seller nor the Shareholder will at any time disclose to other than Buyer or any of Buyer's affiliates, or use, any proprietary information relating to Seller, whether or not such information is embodied in writing or other physical form, except for any such proprietary information which is or becomes publicly available through no fault of Seller or the Shareholder, in which case Seller or the Principal Shareholder may disclose to the extent required by applicable law. For purposes of this Agreement, the phrase "proprietary information" means all information which is known only to an employee, former employee or consultant of or other person in a confidential relationship with Seller or any of its affiliates and which relates to specific technical matters concerning Seller, such as, without limiting the generality of the foregoing, devices, formulae, components, patterns or materials or machines for manufacturing, testing, building or product development, sales or financing procedures or methods of Seller or any of its affiliates or which relates to specific business matters concerning Seller such as, without limiting the generality of the foregoing, the identity of suppliers, customers or contractors of Seller or its affiliates;
(iii) Seller and the Shareholder recognize that all documents and objects containing or reflecting any proprietary information relating to Seller, whether developed by Seller or by someone else for Seller or any of its affiliates, will be after the Closing Date the respective exclusive property of Buyer or of such of its affiliates, as the case may bereceive substantial benefit; and
(ivvi) Neither Seller nor That if, at the Shareholder will recruit any employees who accept employment with Buyer who were formerly employed by Sellertime of enforcement of the covenants contained in Section 5.6 (a)(i), except with the consent of Buyer, which shall not be unreasonably withheld.
(b) In the event that a court of competent jurisdiction holds shall hold that Parent the duration, scope or Buyer breached the provisions of any of the Agreements, including the Employment Agreementarea restrictions stated therein are unreasonable under circumstances then existing, the restrictions contained in this covenant as described in Section 13 herein shall automatically terminate.
(c) Notwithstanding anything to parties agree that the contrarymaximum duration, in the event of any material breach, violation or default by: Buyer or Parent of the provisions of this Asset Purchase Agreementscope, or by Parent of the provisions of the Employment Letter Agreement between Parent and Shareholder, or by Parent of the provisions of the Lease Agreement between Shareholder and Parent, Seller and Shareholder area reasonable under such circumstances shall be released and relieved of any and all duties and obligations arising under Section 13 of this Agreementsubstituted for the stated duration, scope or area.
Appears in 1 contract
Samples: Stock Purchase Agreement (Stryker Machining Facility Co)
Covenant Against Competition. 2.1 Employee acknowledges that the services to be performed under this Agreement are of a special, unique, unusual, extraordinary and intellectual character, that the business of the Company is national in scope, that its products are marketed throughout the United States, Canada and internationally (a) the “Market Area”), and that the Company competes with other organizations that are or could be located in any part of the Market Area. As a further an inducement for Company to Buyer to ---------------------------- purchase enter into the assets Employment Agreement and in consideration of Seller the employment of Employee and the severance pay, benefits and in consideration of continued employment by the Company, Employee hereby covenants and agrees that Employee shall not during the Employment Period, except in the course of Employee’s employment hereunder, Seller and the Shareholder agree jointly and not severally that for a period of twelve (except to the extent otherwise provided in subsection (b12) hereof) for the period from the Closing Date through the two (2) year anniversary of the Closing Date:
(i) Seller and the Shareholder will not in any waymonths thereafter, directly or indirectlyindirectly engage or invest in, own, manage, operate operate, control or participate in the ownership, management, operation or control of, be employed, associated or in any enterprise which engages inmanner connected with, or otherwise carries onrender services or advice to, any business activity whose products or activities compete in competition whole or in part with the business of Seller transferred to Buyer as Business Activities of the Closing Date in any geographic area (includingCompany, without limitation, North, Central and South America) within the Geographic Territories within the Market Area in which products of Seller are sold or are offered for sale by Buyer; Seller and the Shareholder recognize that the offer and sale of the products of Seller will be worldwide in scope in that Buyer will directly advertise and solicit business from customers wherever they may be found;
(ii) Neither Seller nor the Shareholder will Company at any time disclose during the Employment Period conducts its Business Activities; provided, however, that Employee may invest in up to (but not more than) four percent of any class of securities of any enterprise (but without otherwise participating in the activities of such enterprise) if such securities are listed on any national or regional securities exchange or have been registered under Section 12(g) of the Securities Exchange Act of 1934.) If the location where the Company has engaged in Business Activities or provided services to customers is within an area in which gaming activities are regulated by a governmental (state, county, provincial, tribal, country, etc.) body the term “Geographic Territories” shall be all of the geographic area over which the applicable governmental body has jurisdiction.
2.2 During a period twelve (12) months immediately following the termination of Employee's employment, whether with or without cause, Employee shall notify Company in writing by U.S. Mail, return receipt requested, within five days of accepting employment with any other than Buyer employer (including self-employment) or otherwise participating in any activities prohibited by Section 2.1 above. Said notice shall include the name, address, and telephone number of the new employer(s), the date employment began, and the duties to be performed by Employee.
2.3 Employee further agrees that upon termination employment, whether with or without cause, Employee will notify any new employer, partner, associate or any of Buyer's affiliatesother person, firm or usecorporation with whom Employee becomes associated in any capacity whatever, any proprietary information relating to Seller, whether or not such information is embodied in writing or other physical form, except for any such proprietary information which is or becomes publicly available through no fault of Seller or the Shareholder, in which case Seller or the Principal Shareholder may disclose to the extent required by applicable law. For purposes of this Agreement, the phrase "proprietary information" means all information which is known only to an employee, former employee or consultant of or other person in a confidential relationship with Seller or any of its affiliates and which relates to specific technical matters concerning Seller, such as, without limiting the generality of the foregoing, devices, formulae, components, patterns or materials or machines for manufacturing, testing, building or product development, sales or financing procedures or methods of Seller or any of its affiliates or which relates to specific business matters concerning Seller such as, without limiting the generality of the foregoing, the identity of suppliers, customers or contractors of Seller or its affiliates;
(iii) Seller and the Shareholder recognize that all documents and objects containing or reflecting any proprietary information relating to Seller, whether developed by Seller or by someone else for Seller or any of its affiliates, will be after the Closing Date the respective exclusive property of Buyer or of such of its affiliates, as the case may be; and
(iv) Neither Seller nor the Shareholder will recruit any employees who accept employment with Buyer who were formerly employed by Seller, except with the consent of Buyer, which shall not be unreasonably withheld.
(b) In the event that a court of competent jurisdiction holds that Parent or Buyer breached the provisions of any of the Agreements, including the Employment Agreement, the restrictions contained in this covenant as described in Section 13 herein shall automatically terminate.
(c) Notwithstanding anything to the contrary, in the event of any material breach, violation or default by: Buyer or Parent of the provisions of this Asset Purchase Agreement, or by Parent Agreement and that Company may give similar notice of the provisions of the Employment Letter Agreement between Parent and Shareholder, or by Parent of the provisions of the Lease Agreement between Shareholder and Parent, Seller and Shareholder shall be released and relieved of any and all duties and obligations arising under Section 13 of this Agreementit.
Appears in 1 contract
