Covenant Against Competition. The Employee acknowledges that (i) the principal businesses of the Company and its subsidiaries and affiliates are the "Wholesale Business" (as defined below) and the "Retail Closeout Business" (as defined below) (such businesses, and any and all other businesses that, after the effective date hereof and from time to time during the Term, are engaged in by the Company or its subsidiaries and affiliates herein being collectively referred to as the "Company Business"); (ii) the value of all goodwill resulting from the operation of the Company Business should properly belong to the Company and its subsidiaries and affiliates; (iii) upon the termination of the Employee's employment, the Employee will have no right or interest to such goodwill; (iv) the covenants and agreements of the Employee in this Section 6 are necessary to preserve the value of such goodwill for the benefit of the Company and its subsidiaries and affiliates; (v) the Employee has had and will have access to Confidential Company Information (as defined below); (vi) the Company Business is the same business in which the Employee has and will participate (a) During the period commencing on the Effective Date and ending on the date twelve (12) months following the expiration of the Term (the "Restricted Period"), the Employee shall not in the United States of America (1) engage in the Company Business, whether as part of a division or otherwise, for the Employee's own account; (2) render any services to any person or entity (other than the Company or its subsidiaries and affiliates) engaged in such activities, whether as part of a division or otherwise; or (3) become interested in any such person or entity (other than the Company or its subsidiaries and affiliates) as a partner, officer, director, shareholder, principal, agent, employee, consultant or in any other relationship or capacity; provided, however, that notwithstanding the above, the Employee may own, directly or indirectly, solely as an investment, securities of any such person or entity which are traded on any national securities exchange or Nasdaq market if the Employee (A) is not a controlling person of, or a member of a group which controls, such person or entity and (B) does not, directly or indirectly, own four percent (4%) or more of any class of securities of such person or entity. (b) During and after the Restricted Period, the Employee shall keep secret and retain in strictest confidence, and shall not disclose, rely on or otherwise use for his benefit or the benefit of others, except in connection with the business and affairs of the Company and its subsidiaries and affiliates, all confidential matters relating to the Company Business learned by the Employee on or after the Effective Date directly or indirectly from the Company or its subsidiaries and affiliates, including, without limitation, information with respect to (a) prospective store locations, (b) sales figures (whether per store or otherwise), (c) profit or loss figures (whether per store or otherwise), and (d) customers, clients, suppliers, sources of supply and customer lists (the "Confidential Company Information") and shall not disclose the Confidential Company Information to anyone outside of the Company or its subsidiaries and affiliates, except with the Company's express written consent and except for Confidential Company Information that (1) is at the time of receipt or thereafter becomes publicly known through no wrongful act of the Employee, (2) is received from a third party not under an obligation to keep such information confidential and without breach of this Agreement or (3) was previously known by the Employee before being employed by the Company. (c) During the Restricted Period, the Employee shall not, without the Company's prior written consent, directly or indirectly, knowingly solicit, recruit or encourage to leave the employment of the Company or its subsidiaries or affiliates, any employee of the Company, such subsidiaries or affiliates, or hire any employee who has left the employment of the Company, its subsidiaries or affiliates after the effective date of this Agreement within one year of the termination of such employee's employment with the Company, its subsidiaries or affiliates. (d) All memoranda, notes, lists, records and other documents (and all copies thereof) made or compiled by the Employee or made available to the Employee concerning the Company Business or the Company and its subsidiaries and affiliates shall be the Company's property and shall be delivered to the Company at any time on request, provided such property is then possessed by the Employee and can be readily identified as such by him. (e) For purposes hereof, "Wholesale Business" shall mean any business involving (i) the wholesale distribution of merchandise acquired through purchases of (A) overstocks, (B) closeouts, (C) items liquidated by a manufacturer or by a retail store, (D) merchandise available in connection with bankruptcies or other distress situations, (E) merchandise at or below regular price primarily as a result of the production of the merchandise occurring during periods in which the production facilities otherwise would be idle or would have underutilized capacity or (F) buybacks made by a manufacturer of a competitor's or its own merchandise, or (ii) the importing of types or categories of merchandise with respect to which, at the time the Employee terminates employment or at any time during the Term, the Company (A) transacts (or has transacted) wholesale business, or otherwise sells or purchases (or has sold or purchased) or (B) has committed to sell or purchase; provided that a business shall be deemed to be a Wholesale Business only if it has Ten Million Dollars ($10,000,000) or more in sales from activities described from clauses (i) and
Appears in 1 contract
Covenant Against Competition. The Employee acknowledges that (a) In order to induce Purchaser ---------------------------- to enter into and perform this Agreement, each Shareholder covenants and agrees that, for a period of five years beginning on the Closing Date, he will not, without the prior written consent of Purchaser, for his own account or jointly with another, directly or indirectly, for or on behalf of any Person (as defined in ARTICLE 7), as principal, agent, shareholder, participant, partner, promoter, director, officer, manager, employee, consultant, sales representative or otherwise, except as an employee or on behalf of Purchaser:
(i) engage or invest in, consult with, or own, control, manage, assist or otherwise participate in the principal businesses ownership, control or management of, or render services or advise to, or lend his name to, any business engaged in the purchase for resale, sale or distribution within the Territory (as defined in ARTICLE 7) of heating, ventilating, air conditioning and refrigeration equipment, parts and supplies ("PRODUCTS");
(ii) solicit or assist in the solicitation of any Person having an office or place of business within the Territory and to whom Company or any Subsidiary sold or provided any Products on, or during the two year period prior to, the date of the Closing Date, for the purpose of obtaining the patronage of such Person for the purchase of any Products;
(iii) solicit or induce, or in any manner assist in the solicitation or inducement of, any Person employed by Company or any Subsidiary (as defined in SECTION 3.1), as an employee, independent contractor or otherwise, to leave such employment, whether or not such employment is pursuant to a contract and its subsidiaries and affiliates are the "Wholesale Business" whether or not such employment is at will; or
(iv) use, disclose or reveal to any Person, any Confidential Information (as defined below) of Company and the "Retail Closeout Business" (as defined below) (such businesses, and any and all other businesses that, after the effective date hereof and from time to time during the Term, are engaged in by the Company or its subsidiaries and affiliates herein being collectively referred to as the "Company Business"); (ii) the value of all goodwill resulting from the operation of the Company Business should properly belong to the Company and its subsidiaries and affiliates; (iii) upon the termination of the Employee's employment, the Employee will have no right or interest to such goodwill; (iv) the covenants and agreements of the Employee in this Section 6 are necessary to preserve the value of such goodwill for the benefit of the Company and its subsidiaries and affiliates; (v) the Employee has had and will have access to Confidential Company Information (as defined below); (vi) the Company Business is the same business in which the Employee has and will participate
(a) During the period commencing on the Effective Date and ending on the date twelve (12) months following the expiration of the Term (the "Restricted Period"), the Employee shall not in the United States of America (1) engage in the Company Business, whether as part of a division or otherwise, for the Employee's own account; (2) render any services to any person or entity (other than the Company or its subsidiaries and affiliates) engaged in such activities, whether as part of a division or otherwise; or (3) become interested in any such person or entity (other than the Company or its subsidiaries and affiliates) as a partner, officer, director, shareholder, principal, agent, employee, consultant or in any other relationship or capacitySubsidiaries; provided, however, that notwithstanding for purposes of this SECTION 2.3, with respect to each Shareholder, Confidential Information shall not include confidential business information that does not constitute a trade secret under applicable Law (as defined in ARTICLE 7) upon the above, expiration of the Employee may own, directly or indirectly, solely as an investment, securities fifth anniversary of any such person or entity which are traded on any national securities exchange or Nasdaq market if the Employee (A) is not a controlling person of, or a member of a group which controls, such person or entity and (B) does not, directly or indirectly, own four percent (4%) or more of any class of securities of such person or entityClosing Date.
(b) During Notwithstanding anything herein to the contrary, it shall not be a breach of the covenants contained in SECTION 2.3(A) for (i) either Shareholder to own up to 2% of any class of publicly traded securities of any Person or (ii) ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, P.C. to serve solely as legal counsel to any Person engaged in the activities described in SECTION 2.3(A).
(c) Although the parties have, in good faith, used their best efforts to make the provisions of this SECTION 2.3 reasonable in both geographic area and after in duration in light of the Restricted Periodfinancial aspects of the transaction, and it is not anticipated, nor is it intended, by any party hereto that a Tribunal (as defined in ARTICLE 7) of competent jurisdiction would find it necessary to reform the provisions hereof to make it reasonable in both geographic area or in duration, the Employee shall keep secret parties understand and retain agree that if a Tribunal of competent jurisdiction determines it necessary to reform the scope of this SECTION 2.3 in strictest confidenceorder to make it reasonable in either geographic area or duration, or otherwise, then damages, if any, for a breach hereof, as so reformed, would be deemed to accrue to Purchaser as of and shall not disclosefrom the date of such a breach only in so far as the damages for such breach relate to an action which occurred within the scope of the geographic area or duration as so reformed.
(d) For purposes of this Agreement, rely on or otherwise use for his benefit or the benefit of others"CONFIDENTIAL INFORMATION" means any and all technical, except in connection with the business and affairs of the Company and its subsidiaries and affiliatesother information which derives economic value, all confidential matters relating actual or potential, from not being generally known to the Company Business learned by the Employee on or after the Effective Date directly or indirectly from the Company or its subsidiaries and affiliatespublic, including, without limitation, technical or nontechnical data, compositions, devices, methods, techniques, drawings, inventions, processes, financial data, financial plans, product plans, lists or information with respect to (a) prospective store locationsconcerning actual or potential customers or suppliers, (b) information regarding business plans and operations, methods and plans of operation, marketing strategies, sales figures (whether per store and distribution plans or otherwise)strategies, (c) profit or loss figures (whether per store or otherwise)cost information, pricing strategies, and (d) customersacquisition and investment plans of Company and the Subsidiaries. Notwithstanding any other provision herein, clients, suppliers, sources of supply and customer lists (the "Confidential Company Information") and Information shall not disclose the Confidential Company Information to anyone outside of the Company or its subsidiaries and affiliates, except with the Company's express written consent and except for Confidential Company Information that (1) is at the time of receipt or thereafter becomes publicly known through no wrongful act of the Employee, (2) is received from a third party not under an obligation to keep such include any information confidential and without breach of this Agreement or (3) was previously known by the Employee before being employed by the Company.
(c) During the Restricted Period, the Employee shall not, without the Company's prior written consent, directly or indirectly, knowingly solicit, recruit or encourage to leave the employment of the Company or its subsidiaries or affiliates, any employee of the Company, such subsidiaries or affiliates, or hire any employee who has left the employment of the Company, its subsidiaries or affiliates after the effective date of this Agreement within one year of the termination of such employee's employment with the Company, its subsidiaries or affiliates.
(d) All memoranda, notes, lists, records and other documents (and all copies thereof) made or compiled by the Employee or made available to the Employee concerning the Company Business or the Company and its subsidiaries and affiliates shall be the Company's property and shall be delivered to the Company at any time on request, provided such property is then possessed by the Employee and can be readily identified as such by him.
(e) For purposes hereof, "Wholesale Business" shall mean any business involving (i) the wholesale distribution of merchandise acquired through purchases of (A) overstocks, (B) closeouts, (C) items liquidated which is independently developed by a manufacturer or by a retail store, (D) merchandise available in connection with bankruptcies or other distress situations, (E) merchandise at or below regular price primarily as a result Shareholder without the use of the production of the merchandise occurring during periods in which the production facilities otherwise would be idle or would have underutilized capacity or (F) buybacks made by a manufacturer of a competitor's or its own merchandise, or any Confidential Information; (ii) which was in the importing public domain prior to the disclosure thereof; (iii) any information which comes into the public domain through no fault of types or categories of merchandise with respect a Shareholder; (iv) any information which is disclosed without restriction to which, at a Shareholder by a third Person having the time the Employee terminates employment or at any time during the Term, the Company (A) transacts (or has transacted) wholesale business, or otherwise sells or purchases (or has sold or purchased) legal right to make such disclosure; or (Bv) has committed to sell or purchase; provided that a business shall be deemed any information which is required to be a Wholesale Business only if it has Ten Million Dollars disclosed by Law or by Order ($10,000,000as defined in ARTICLE 7) or more in sales from activities described from clauses (i) andof any Tribunal.
Appears in 1 contract
Covenant Against Competition. The Employee acknowledges that (a) As an essential consideration for the obligations of Buyer under this Agreement, each Seller Party hereby agrees and covenants that:
(i) the principal businesses of the Company and its subsidiaries and affiliates are the "Wholesale Business" (as defined below) and the "Retail Closeout Business" (as defined below) (such businesses, and any and all other businesses that, after the effective date hereof and from time to time during the Term, are engaged in by the Company or its subsidiaries and affiliates herein being collectively referred to as the "Company Business"); (ii) the value of all goodwill resulting from the operation of the Company Business should properly belong to the Company and its subsidiaries and affiliates; (iii) upon the termination of the Employee's employment, the Employee will have no right or interest to such goodwill; (iv) the covenants and agreements of the Employee in this Section 6 are necessary to preserve the value of such goodwill for the benefit of Noncompete Period within the Company and its subsidiaries and affiliates; (v) the Employee has had and will have access to Confidential Company Information (as defined below); (vi) the Company Business is the same business in which the Employee has and will participate
(a) During the period commencing on the Effective Date and ending on the date twelve (12) months following the expiration of the Term (the "Restricted Period")Territory, the Employee each Seller Party shall not in the United States of America (1) engage in the Company Businessnot, directly or indirectly, whether as part of a division or otherwise, for the Employee's own account; (2) render any services to any person or entity (other than the Company or its subsidiaries and affiliates) engaged in such activities, whether as part of a division or otherwise; or (3) become interested in any such person or entity (other than the Company or its subsidiaries and affiliates) as a partner, officer, director, shareholder, principal, agent, employee, consultant shareholder or other equity holder (other than a holding of shares listed on a United States stock exchange or automated quotation system that does not exceed five percent of the outstanding shares so listed), owner, investor, partner or otherwise, individually or in association with any other Person: (A) carry on or engage in any manner in the Restricted Business, (B) solicit customers of the Restricted Business, (C) become the employee of, or otherwise render services on behalf of, any Person that carries on or engages in a business similar to the Restricted Business or (D) induce or attempt to induce any customer, supplier, licensee or business relation of Buyer or any of its Affiliates to cease doing business with Buyer or any of its Affiliates, or in any way interfere with the relationship between any customer, supplier, licensee or business relation of Buyer or any of its Affiliates with Buyer or any of its Affiliates; and
(ii) for a period of four years following the Closing Date, each Seller Party shall not, directly or indirectly, either for himself or any other Person, (A) solicit or induce or attempt to solicit or induce any employee of or independent contractor providing services to Buyer or any of its Affiliates to leave the employ of or to cease providing services to Buyer or any of its Affiliates, (B) in any way interfere with the relationship between Buyer or capacityany of its Affiliates and any employee of or independent contractor providing services to Buyer or any of its Affiliates or (C) employ, or otherwise engage as an employee, independent contractor or otherwise, any employee of Buyer or any of its Affiliates or any independent contractor of Buyer of any of its Affiliates who had been an employee of any Seller Party or its Affiliates.
(b) Any dispute, controversy or claim arising out of or in connection with this Section 5.6, including the alleged breach of this Section 5.6 or a challenge to its validity or enforceability, shall be settled exclusively by final and binding arbitration in Tarrant County, Texas, administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules of the AAA; provided, however, that notwithstanding nothing herein is or shall be deemed to preclude Buyer’s resort to the aboveinterim relief prescribed in Section 5.6(c), below. The arbitrator(s) shall be selected by mutual agreement of the parties, if possible. If the parties fail to reach agreement upon appointment of arbitrator(s) within thirty days following receipt by one party of the other party’s notice of desire to arbitrate, the Employee may ownarbitrator(s) shall be selected from a panel or panels of persons submitted by the AAA. The selection process shall be that which is set forth in the AAA Commercial Arbitration Rules then prevailing, directly except that, if the parties fail to select arbitrator(s) from one or indirectlymore panels, solely as an investment, securities AAA shall not have the power to make appointment(s) but shall continue to submit additional panels until arbitrator(s) have been selected. The jurisdiction of the arbitrator(s) and the arbitrability of any such person claim, defense, issue or entity which are traded objection raised by any party shall be decided by the arbitrator(s) in the first instance. Judgment on the award entered by the arbitrator(s) may be entered by any national securities exchange or Nasdaq market if court having jurisdiction thereof. All aspects of the Employee (A) is not a controlling person of, or a member of a group which controls, such person or entity arbitration and (B) does not, directly or indirectly, matters subject thereto shall remain confidential. The parties will each bear their own four percent (4%) or more of any class of securities of such person or entity.
(b) During attorneys’ fees and after the Restricted Period, the Employee shall keep secret and retain in strictest confidence, and shall not disclose, rely on or otherwise use for his benefit or the benefit of others, except costs in connection with the business and affairs of the Company and its subsidiaries and affiliatesany dispute or controversy, all confidential matters relating to the Company Business learned by the Employee on or after the Effective Date directly or indirectly from the Company or its subsidiaries and affiliates, including, without limitation, information with respect to (a) prospective store locations, (b) sales figures (whether per store or otherwiseexcept as provided in Section 5.6(c), (c) profit or loss figures (whether per store or otherwise), and (d) customers, clients, suppliers, sources of supply and customer lists (the "Confidential Company Information") and shall not disclose the Confidential Company Information to anyone outside of the Company or its subsidiaries and affiliates, except with the Company's express written consent and except for Confidential Company Information that (1) is at the time of receipt or thereafter becomes publicly known through no wrongful act of the Employee, (2) is received from a third party not under an obligation to keep such information confidential and without breach of this Agreement or (3) was previously known by the Employee before being employed by the Companybelow.
(c) During In the Restricted Periodevent of a breach or threatened breach by any Seller Party of any of the provisions of this Section 5.6, Buyer shall have the Employee right to seek interim relief from AAA pursuant to the Optional Rules for Emergency Measures of Protection contained in the Commercial Arbitration Rules of the AAA (including the arbitrator selection procedures provided for in such Optional Rules for Emergency Measures of Protection, which shall notgovern the selection of arbitrator(s) for purposes of this paragraph (c)) or from a court of competent jurisdiction. The Seller Parties acknowledge that Buyer will suffer irreparable damage or injury not fully compensable by money damages, or the exact amount of which may be impossible to ascertain, and therefore will not have an adequate legal remedy. Accordingly, Buyer will be entitled to obtain any interim relief necessary or appropriate to prevent or curtail any such breach, threatened or actual, without the Company's prior written consentnecessity of posting security or showing any actual damages or irreparable injury. Such interim relief may include, directly but is not limited to, (i) temporary or indirectly, knowingly solicit, recruit or encourage to leave permanent injunctive relief for the employment of the Company or its subsidiaries or affiliates, any employee of the Company, such subsidiaries or affiliates, or hire any employee who has left the employment of the Company, its subsidiaries or affiliates after the effective date enforcement of this Agreement within one year Section 5.6, (ii) a decree for the specific performance of this Section 5.6 or (iii) Buyer’s reasonable attorneys’ fees, costs and expenses related to such interim relief; provided, however, that Buyer agrees to pay for any Seller Party’s reasonable attorneys’ fees, costs and expenses related to interim relief sought by Buyer in the termination of event that the Seller Parties prevail and no such employee's employment with interim relief is granted. Such interim relief is in addition to any other rights Buyer may have, including the Company, its subsidiaries or affiliatesright to seek damages.
(d) All memorandaBuyer and each Seller Party hereby agree that this Section 5.6 is a material and substantial part of the transactions contemplated by this Agreement. Each Seller Party further agrees and acknowledges that the covenants in this Section 5.6 are reasonable with respect to their duration, notes, lists, records scope and other documents (and all copies thereof) made or compiled by the Employee or made available to the Employee concerning the Company Business or the Company and its subsidiaries and affiliates shall be the Company's property and shall be delivered to the Company at any time on request, provided such property is then possessed by the Employee and can be readily identified as such by himgeographical area.
(e) For purposes hereofThe covenants in this Section 5.6 are severable and separate, "Wholesale Business" including within provisions, subparts or portions thereof, and the unenforceability of any specific covenant, provision or subpart thereof in this Section 5.6 is not intended by any party hereto to, and shall mean not, affect the provisions of any business involving (i) the wholesale distribution other covenant in this Section 5.6. If any arbitrator or panel of merchandise acquired through purchases of (A) overstocks, (B) closeouts, (C) items liquidated by a manufacturer or by a retail store, (D) merchandise available in connection with bankruptcies or other distress situations, (E) merchandise at or below regular price primarily as a result of the production of the merchandise occurring during periods in which the production facilities otherwise would be idle or would have underutilized capacity or (F) buybacks made by a manufacturer of a competitor's or its own merchandisearbitrators, or any court pursuant to paragraph (iic) above, determines that the importing of types terms, scope, time or categories of merchandise with respect territorial restrictions set forth in Section 5.6(a) are unreasonable as applied to which, at the time the Employee terminates employment or at any time during the Terma Seller Party, the Company (A) transacts (parties hereto acknowledge their mutual intention and agreement that the offending provisions, subparts or has transacted) wholesale business, or otherwise sells or purchases (or has sold or purchasedportions thereof be severed and the remaining provisions and restrictions be enforced to the fullest extent permitted by law as the arbitrator(s) or court (Bpursuant to paragraph (c) has committed to sell or purchase; provided that a business above) deems reasonable, and thereby shall be deemed reformed to that extent. All the covenants, provisions and subparts thereof in this Section 5.6 are intended by each party hereto to, and shall, be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim or cause of action of any Seller Party against Buyer, whether predicated on this Agreement or otherwise, shall not constitute a Wholesale Business only if it has Ten Million Dollars ($10,000,000) defense to the enforcement by Buyer of any covenant, provision or more subpart in sales this Section 5.6. The covenants contained in this Section 5.6 shall not be affected by any breach of any other provision hereof by any party hereto and shall not prevent M▇. ▇▇▇▇▇ ▇. Cenac, Jr., C▇▇▇▇ Towing or Cenac Offshore from activities described from clauses (i) andrendering services to Buyer in accordance with the Transitional Operating Agreement, as amended by the Transitional Operating Agreement Amendment.
Appears in 1 contract
Covenant Against Competition. The Employee acknowledges To induce Purchaser to enter into this Agreement and purchase the Assets as provided herein, and in partial consideration thereof, Seller agrees that for a period of three (3) years, beginning on the Closing Date and ending on the third anniversary date thereof, it will not, except in connection with CANSA's business, without the prior written consent of Purchaser, for its own account or jointly with another, directly or indirectly, for or on behalf of any individual, partnership, corporation or other legal entity, as principal, agent or otherwise: (i) engage in, consult with, or own, control, manage or otherwise part- icipate in the principal businesses ownership, control or management of a business engaged in the manufacture, processing, purchase for resale, sale, or distribution within any part of the Company and its subsidiaries and affiliates are the "Wholesale Business" Trade Area (as defined below) and the "Retail Closeout Business" (as defined below) (such businesses, and any and all other businesses that, after the effective date hereof and from time to time during the Term, are engaged in by the Company or its subsidiaries and affiliates herein being collectively referred to as the "Company Business")of CANSA's business; (ii) the value of all goodwill resulting from the operation of the Company Business should properly belong to the Company and its subsidiaries and affiliates; (iii) upon the termination of the Employee's employment, the Employee will have no right or interest to such goodwill; (iv) the covenants and agreements of the Employee in this Section 6 are necessary to preserve the value of such goodwill for the benefit of the Company and its subsidiaries and affiliates; (v) the Employee has had and will have access to Confidential Company Information (as defined below); (vi) the Company Business is the same business in which the Employee has and will participate
(a) During the period commencing on the Effective Date and ending on the date twelve (12) months following the expiration of the Term (the "Restricted Period"), the Employee shall not in the United States of America (1) engage in the Company Business, whether as part of a division or otherwise, for the Employee's own account; (2) render any services to any person or entity (other than the Company or its subsidiaries and affiliates) engaged in such activities, whether as part of a division or otherwise; or (3) become interested in any such person or entity (other than the Company or its subsidiaries and affiliates) as a partner, officer, director, shareholder, principal, agent, employee, consultant or in any other relationship or capacity; provided, however, that notwithstanding the above, the Employee may own, directly or indirectly, solely as an investment, securities of any such person or entity which are traded on any national securities exchange or Nasdaq market if the Employee (A) is not a controlling person of, or a member of a group which controls, such person or entity and (B) does not, directly or indirectly, own four percent (4%) or more of any class of securities of such person or entity.
(b) During and after the Restricted Period, the Employee shall keep secret and retain in strictest confidence, and shall not disclose, rely on or otherwise use for his benefit or the benefit of others, except in connection with the business and affairs of the Company and its subsidiaries and affiliates, all confidential matters relating to the Company Business learned by the Employee on or after the Effective Date directly or indirectly from the Company or its subsidiaries and affiliates, including, without limitation, information with respect to (a) prospective store locations, (b) sales figures (whether per store or otherwise), (c) profit or loss figures (whether per store or otherwise), and (d) customers, clients, suppliers, sources of supply and customer lists (the "Confidential Company Information") and shall not disclose the Confidential Company Information to anyone outside of the Company or its subsidiaries and affiliates, except with the Company's express written consent and except for Confidential Company Information that (1) is at the time of receipt or thereafter becomes publicly known through no wrongful act of the Employee, (2) is received from a third party not under an obligation to keep such information confidential and without breach of this Agreement or (3) was previously known by the Employee before being employed by the Company.
(c) During the Restricted Period, the Employee shall not, without the Company's prior written consent, directly or indirectly, knowingly solicit, recruit or encourage to leave the employment of the Company or its subsidiaries or affiliates, any employee of the Company, such subsidiaries or affiliates, or hire any employee who has left the employment of the Company, its subsidiaries or affiliates after the effective date of this Agreement within one year of the termination of such employee's employment with the Company, its subsidiaries or affiliates.
(d) All memoranda, notes, lists, records and other documents (and all copies thereof) made or compiled by the Employee or made available to the Employee concerning the Company Business or the Company and its subsidiaries and affiliates shall be the Company's property and shall be delivered to the Company at any time on request, provided such property is then possessed by the Employee and can be readily identified as such by him.
(e) For purposes hereof, "Wholesale Business" shall mean any business involving (i) the wholesale distribution of merchandise acquired through purchases of (A) overstocks, (B) closeouts, (C) items liquidated by a manufacturer or by a retail store, (D) merchandise available in connection with bankruptcies or other distress situations, (E) merchandise at or below regular price primarily as a result of the production of the merchandise occurring during periods in which the production facilities otherwise would be idle or would have underutilized capacity or (F) buybacks made by a manufacturer of a competitor's or its own merchandise, or (ii) solicit, call upon, or attempt to solicit the importing patronage of types any individual, partnership, corporation or categories other legal entity having an office or place of merchandise with respect business within the Trade Area and to which, at whom the time the Employee terminates employment or at Seller sold any time products currently manufactured by CANSA during the Termtwenty-four (24) month period immediately preceding the Closing Date (CANSA's Products), for the purpose of obtaining the patronage of any such individual, partnership, corporation or other legal entity for the purchase of any CANSA's Products from anyone other than the Purchaser, except as an employee and on behalf of the Purchaser. (b) For the purposes of this clause 2.4, the Company (A) transacts (or has transacted) wholesale businessterm "Trade Area" means the territory described in Schedule 2.4(b), or otherwise sells or purchases (or has sold or purchased) or (B) has committed attached hereto, which is the territory within which Purchaser's customers and accounts are located and where the Purchaser solicits substantially all of its patronage. EIGHTH.- MANAGEMENT The Purchaser is interested in ensuring the continuity service of certain Managers of CANSA. Consequently, the Purchaser undertakes to sell or purchase; provided maintain their current conditions of employment. To said effects, the Sellers undertake to co-operate and to do their best so that a business shall be deemed to be a Wholesale Business only if it has Ten Million Dollars ($10,000,000) or more the Purchaser may keep them in sales from activities described from clauses (i) andtheir current employment. NINTH.-
Appears in 1 contract
Sources: Sale and Purchase Agreement (Plymouth Rubber Co Inc)
Covenant Against Competition. The Employee acknowledges that (i) the principal businesses of the Company and its subsidiaries and affiliates are the "Wholesale Business" (as defined below) and the "Retail Closeout Business" (as defined below) (such businesses, and any and all other businesses that, after the effective date hereof and from time to time during the Term, are engaged in by the Company or its subsidiaries and affiliates herein being collectively referred to as the "Company Business"); (ii) the value of all goodwill resulting from the operation of the Company Business should properly belong to the Company and its subsidiaries and affiliates; (iii) upon the termination of the Employee's employment, the Employee will have no right or interest to such goodwill; (iv) the covenants and agreements of the Employee in this Section 6 are necessary to preserve the value of such goodwill for the benefit of the Company and its subsidiaries and affiliates; (v) the Employee has had and will have access to Confidential Company Information (as defined below); (vi) the Company Business is the same business in which the Employee has and will participate
(a) During the period commencing on the Effective Date and ending on the date twelve (12) months following the expiration of the Term (the "Restricted Period"Except as provided in Paragraph 4(e), Robinson agrees that dur▇▇▇ ▇▇▇ Term and for a period of five years thereafter, he shall not, without the Employee shall not in the United States prior written consent of America (1) engage in the Company Business, whether as part of a division or otherwiseCompany, for the Employee's his own account; (2) render any services to any person account or entity (other than the Company or its subsidiaries and affiliates) engaged in such activities, whether as part of a division or otherwise; or (3) become interested in any such person or entity (other than the Company or its subsidiaries and affiliates) as a partner, officer, director, shareholder, principal, agent, employee, consultant jointly or in any other relationship or capacity; provided, however, that notwithstanding the above, the Employee may owncombination with another, directly or indirectly, solely for or on behalf of any person or entity, as principal, agent or otherwise:
(i) engage in, render services to, consult with, or own, control, manage or otherwise participate in the ownership, control or management of a business (A) engaged in the manufacture, assembly, purchase for resale, sale or distribution anywhere in the world of aluminum castings and other castings produced with Lost Foam Technology ("Products") which are competitive with those manufactured, assembled, sold or distributed by the Business during the 12-month period immediately preceding the date upon which Robinson ceases to provi▇▇ ▇▇▇▇▇ces to Company hereunder except as an investmentemployee of or consultant to and on behalf of Company, securities or (B) which utilizes, or provides consulting, engineering or other similar services regarding, Lost Foam Technology ("Services"); or
(ii) solicit, call upon, or attempt to solicit the patronage of any person or entity anywhere in the world and to whom the Business sold any Products, rendered any Services, or attempted to obtain the patronage of for any Products or Services, during the 12-month period immediately preceding the date upon which Robinson ceases to provi▇▇ services to Company hereunder, for the purpose of obtaining the patronage of any such person or entity which are traded for the purchase of any products or services competitive with the Products or the Services, as appropriate, except as an employee of or a consultant to and on any national securities exchange behalf of Purchaser; or
(iii) solicit or Nasdaq market if the Employee (A) is not a controlling person ofinduce, or in any manner attempt to solicit or induce, any individual who is employed by Company to leave such employment, whether or not such employment is pursuant to a member of a group which controls, such person written contract with Company or entity and (B) does not, directly or indirectly, own four percent (4%) or more of any class of securities of such person or entityotherwise.
(b) During and after Notwithstanding anything herein to the Restricted Period, the Employee shall keep secret and retain in strictest confidence, and contrary it shall not disclose, rely on or otherwise use for his benefit or the benefit of others, except in connection with the business and affairs be a breach of the Company covenants contained in this Paragraph 3 for Robinson to own capital ▇▇▇▇▇ ▇▇ other equity interests of RFI and its subsidiaries BRI (provided that neither of them is engaged in a business which Robinson is otherwise pr▇▇▇▇▇▇▇▇ from engaging in pursuant to this Paragraph 3) or (with Robinson s ownership agg▇▇▇▇▇▇▇ with that of BRI, RFI and affiliates, all confidential matters relating to the Company Business learned by the Employee on or after the Effective Date directly or indirectly from the Company or its subsidiaries and affiliates, including, without limitation, information with respect to Richard H. Robinson) not ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ent (a2.0%) prospective store locations, (b) sales figures (whether per store or otherwise), (c) profit or loss figures (whether per store or otherwise), and (d) customers, clients, suppliers, sources of supply and customer lists (the "Confidential Company Information") and shall not disclose the Confidential Company Information to anyone outside of the Company capital stock or its subsidiaries and affiliates, except with the Company's express written consent and except for Confidential Company Information that (1) is at the time other equity interest of receipt any entity whose shares or thereafter becomes equity interests are publicly known through no wrongful act of the Employee, (2) is received from a third party not under an obligation to keep such information confidential and without breach of this Agreement or (3) was previously known by the Employee before being employed by the Companytraded.
(c) During In agreeing to the Restricted Periodterms and provisions of this Paragraph 3, Robinson acknowledges an▇ ▇▇▇▇▇▇ that the Employee shall not, without the Company's prior written consent, directly or indirectly, knowingly solicit, recruit or encourage to leave the employment scope of the Business as conducted by both BRI and RFI prior to the date hereof, and as the same shall be continued by Company or its subsidiaries or affiliatesfrom and after the date hereof, any employee is world-wide as the customers of the Company, such subsidiaries or affiliates, or hire any employee who has left Business engage in business on a global scale. Robinson further acknow▇▇▇▇▇▇ ▇hat to meet the employment product and service requirements of the Company, its subsidiaries or affiliates after the effective date of this Agreement within one year customers of the termination Business and to maintain such business, Company must compete on a global scale as well. Given the requirement of customers of the Business and that Robinson is intimately f▇▇▇▇▇▇▇ with and knowledgeable of the Lost Foam Technology and other confidential and proprietary business information which gives the Business a significant competitive advantage over other potential suppliers to such employee's employment with customers, Robinson expressly ackno▇▇▇▇▇▇▇ and agrees that the time and territorial limits to which he is agreeing are reasonable and necessary in the circumstances to protect the legitimate business interests of Company, its subsidiaries or affiliates.
(d) All memoranda, notes, lists, records and other documents (and all copies thereof) made or compiled by the Employee or made available to the Employee concerning the Company Business or the Company and its subsidiaries and affiliates shall be the Company's property and shall be delivered to the Company at any time on request, provided such property is then possessed by the Employee and can be readily identified as such by him.
(e) For purposes hereofof this Agreement, "Wholesale BusinessLost Foam Technology" shall mean any business involving (i) all technology, processes, know-how, technical information, trade secrets, procedures and other intellectual property and proprietary information related to the wholesale distribution of merchandise casting process known variously in Company's industry as "expendable pattern casting process," "evaporative pattern casting," or "lost foam casting" and acquired through purchases of (A) overstocksby Company from BRI and RFI, (B) closeoutsand as the same may be further developed, (C) items liquidated improved and enhanced by a manufacturer or by a retail store, (D) merchandise available in connection with bankruptcies or other distress situations, (E) merchandise at or below regular price primarily as a result of the production of the merchandise occurring during periods in which the production facilities otherwise would be idle or would have underutilized capacity or (F) buybacks made by a manufacturer of a competitor's or its own merchandise, or (ii) the importing of types or categories of merchandise with respect to which, at the time the Employee terminates employment or at any time during the Term, the Company (A) transacts (or has transacted) wholesale business, or otherwise sells or purchases (or has sold or purchased) or (B) has committed to sell or purchase; provided that a business shall be deemed to be a Wholesale Business only if it has Ten Million Dollars ($10,000,000) or more in sales from activities described from clauses (i) andCompany.
Appears in 1 contract
Sources: Management Agreement (Intermet Corp)
Covenant Against Competition. The Employee acknowledges that (i) During the principal businesses of period commencing the Company and its subsidiaries and affiliates are the "Wholesale Business" (as defined below) and the "Retail Closeout Business" (as defined below) (such businesses, and any and all other businesses that, after the effective date hereof and from time to time during terminating on the Termthird anniversary of the date of this Agreement, are engaged the Stockholder shall not, directly or indirectly, either alone or in by association with others, anywhere within the Company world, other than in the performance of his or her duties as an employee or consultant of Parent or its subsidiaries and affiliates herein being collectively referred to as the "Company Business"); (ii) the value of all goodwill resulting from the operation of the Company Business should properly belong to the Company and its subsidiaries and affiliates; (iii) upon the termination of the Employee's employment, the Employee will have no right or interest to such goodwill; (iv) the covenants and agreements of the Employee in this Section 6 are necessary to preserve the value of such goodwill for the benefit of the Company and its subsidiaries and affiliates; (v) the Employee has had and will have access to Confidential Company Information (as defined below); (vi) the Company Business is the same business in which the Employee has and will participate:
(a) During the period commencing on the Effective Date and ending on the date twelve (12) months following the expiration of the Term (the "Restricted Period")engage, the Employee shall not in any way or to any extent, in the United States of America Business;
(1b) engage in the Company Business, whether as part of a division or otherwise, for the Employee's own account; (2) render any services to any person or entity (other than the Company or its subsidiaries and affiliates) engaged in such activities, whether as part of a division or otherwise; or (3) become interested in any such person or entity (other than the Company or its subsidiaries and affiliates) as a partner, officer, director, shareholder, principal, agentconsultant, employee, consultant partner or in any other capacity, own, manage, control or participate in the ownership, management or control of, or render services directly related to, any person, corporation, partnership, proprietorship, firm, association or other business entity engaged in any way and to any extent in the Business or any other activities that are competitive with the Business;
(c) induce, request or encourage any employee, consultant, officer or director of Parent or its affiliates to terminate any such relationship with Parent or capacitysuch affiliate;
(d) employ, cause to be employed, or assist in or solicit the employment of any employee, consultant, officer or director of Parent or its affiliates while any such person is providing services to Parent or its affiliates or within six months after any such person ceases providing services to Parent or its affiliates; providedor
(e) solicit, howeverdivert or appropriate, that notwithstanding or assist in or attempt to solicit, divert or appropriate, any customer or supplier, or any potential customer or supplier, of Parent or its affiliates for the abovepurpose of competing with the Business. Notwithstanding any provision of this Agreement to the contrary, the Employee Stockholder may own, directly or indirectly, solely as an investment, securities of any such person or entity having a class of securities registered pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”) which are traded on any national securities exchange or Nasdaq market if engages in a business competitive with the Employee (A) is not a controlling person ofBusiness, or a member of a group which controls, such person or entity and (B) provided that the Stockholder does not, directly or indirectly, individually or in the aggregate (including without limitation by being a member of a group within the meaning of Rule 13d-5 under the Exchange Act) own four beneficially or of record more than one percent (41%) or more of any class of securities of such person or entity.
(b) During and after the Restricted Period. For purposes of this Agreement, the Employee term “affiliate” shall keep secret and retain have the meaning ascribed to such term in strictest confidenceRule 405 under the Securities Act of 1933, and shall not discloseas amended. Notwithstanding anything to the contrary set forth in Section 1.1 above, rely on if the Shareholder’s employment under the Employment Agreement is terminated by the Employer without cause or otherwise use for his benefit or by the benefit of others, except in connection with Stockholder due to a material breach by the business and affairs Employer of the Company Employment Agreement, then this Section 1.1(a) and its subsidiaries and affiliates, all confidential matters relating Section 1.1(b) shall apply to the Company Business learned by Stockholder only for so long as the Employee on or after Stockholder is receiving severance pay due under the Effective Date directly or indirectly from the Company or its subsidiaries and affiliates, including, without limitation, information with respect to (a) prospective store locations, (b) sales figures (whether per store or otherwise), (c) profit or loss figures (whether per store or otherwise), and (d) customers, clients, suppliers, sources of supply and customer lists (the "Confidential Company Information") and shall not disclose the Confidential Company Information to anyone outside of the Company or its subsidiaries and affiliates, except with the Company's express written consent and except for Confidential Company Information that (1) is at the time of receipt or thereafter becomes publicly known through no wrongful act of the Employee, (2) is received from a third party not under an obligation to keep such information confidential and without breach of this Employment Agreement or (3) was previously known by Base Salary pursuant to the Employee before being employed by following sentence. Notwithstanding anything to the Company.
(c) During contrary in the Restricted PeriodEmployment Agreement, the Employee Employer shall nothave the right to pay the Stockholder his Base Salary to extend the period of non-competition for as long as Employer determines, without in the Company's prior written consentsole exercise of its discretion, directly but in no event beyond the Term Expiration Date. This Agreement shall survive and be enforceable whether or indirectly, knowingly solicit, recruit or encourage to leave not any compensatory payment is made if the Stockholder’s employment of the Company or its subsidiaries or affiliates, any employee of the Company, such subsidiaries or affiliates, or hire any employee who has left the employment of the Company, its subsidiaries or affiliates after the effective date of this Agreement within one year of the termination of such employee's employment with the Company, its subsidiaries or affiliates.
(d) All memoranda, notes, lists, records and other documents (and all copies thereof) made or compiled by the Employee or made available to the Employee concerning the Company Business or the Company and its subsidiaries and affiliates shall be the Company's property and shall be delivered to the Company at any time on request, provided such property is then possessed by the Employee and can be readily identified as such by him.
(e) For purposes hereof, "Wholesale Business" shall mean any business involving terminated (i) the wholesale distribution of merchandise acquired through purchases of (A) overstocks, (B) closeouts, (C) items liquidated by a manufacturer or by a retail store, (D) merchandise available in connection with bankruptcies or other distress situations, (E) merchandise at or below regular price primarily as a result of the production of the merchandise occurring during periods in which the production facilities otherwise would be idle or would have underutilized capacity or (F) buybacks made by a manufacturer of a competitor's or its own merchandise, for cause or (ii) if the importing Stockholder resigns for any reason other than a material breach by the Employer of types or categories of merchandise with respect to which, at the time the Employee terminates employment or at any time during the Term, the Company (A) transacts (or has transacted) wholesale business, or otherwise sells or purchases (or has sold or purchased) or (B) has committed to sell or purchase; provided that a business shall be deemed to be a Wholesale Business only if it has Ten Million Dollars ($10,000,000) or more in sales from activities described from clauses (i) andEmployment Agreement.
Appears in 1 contract
Sources: Non Competition Agreement (Driftwood Ventures, Inc.)
Covenant Against Competition. The Employee acknowledges that (i) the principal businesses of the Company and its subsidiaries and affiliates are the "Wholesale Business" (as defined below) and the "Retail Closeout Business" (as defined below) (such businesses, and any and all other businesses that, after the effective date hereof and from time to time during the Term, are engaged in by the Company or its subsidiaries and affiliates herein being collectively referred to as the "Company Business"); (ii) the value of all goodwill resulting from the operation of the Company Business should properly belong to the Company and its subsidiaries and affiliates; (iii) upon the termination of the Employee's employment, the Employee will have no right or interest to such goodwill; (iv) the covenants and agreements of the Employee in this Section 6 are necessary to preserve the value of such goodwill for the benefit of the Company and its subsidiaries and affiliates; (v) the Employee has had and will have access to Confidential Company Information (as defined below); (vi) the Company Business is the same business in which the Employee has and will participate
(a) During The parties acknowledge that the period commencing Purchaser and the Seller intend to enter into the Management Agreement pursuant to which the Seller will be authorized to continue to operate the Business on the Effective Date and ending on the date twelve (12) months following the expiration behalf of the Term Purchaser, as more fully set forth in such agreement. The Seller's performance of its obligations under the Management Agreement will not constitute a violation of the provisions of this Section 5.7.
(the "Restricted Period"b) Except as expressly permitted by Section 5.7(a), the Employee shall not in Seller hereby agrees that, subject to consummation of the United States Closing, Seller will not, without the prior written consent of America (1) engage in the Company Business, whether as part of a division or otherwisePurchaser, for the Employee's its own account; (2) render any services to any person account or entity (other than the Company or its subsidiaries and affiliates) engaged in such activities, whether as part of a division or otherwise; or (3) become interested in any such person or entity (other than the Company or its subsidiaries and affiliates) as a partner, officer, director, shareholder, principal, agent, employee, consultant or in any other relationship or capacity; provided, however, that notwithstanding the above, the Employee may ownjointly with another, directly or indirectly, solely as an investment, securities for or on behalf of any such person Person, as principal, agent, shareholder, participant, partner, promoter, lender, director, officer, manager, employee, consultant, sales representative or entity which are traded on any national securities exchange otherwise:
(i) for a period of five (5) years from the Closing Date, engage or Nasdaq market if invest in, or own, control, manage or participate in the Employee (A) is not a controlling person development, ownership, control, management, marketing or administration of, or a member render services or advice to, or lend the name of a group the Seller to, any business engaged, or which controlsthe Seller reasonably know is undertaking to become engaged, such person anywhere in the world in any aspect of the development, ownership, control, management, marketing or entity and (B) does not, directly or indirectly, own four percent (4%) or more administration of any class business that competes with the Business, including any Business engaged in corporate or leisure travel management or distribution (a "Competitive Business");
(ii) for a period of securities five (5) years from the Closing Date, solicit or assist in the solicitation of, any Person employed by the Purchaser (as an employee, independent contractor or otherwise), to terminate such employment, whether or not such employment is pursuant to a Assigned Contract and whether or not such employment is at will; or
(iii) for a period of such person five (5) years from the Closing Date, use, or entitydisclose or reveal to any Person, any Confidential Information of the Seller or Purchaser, including the subscriber databases or the advertiser database.
(bc) During and after the Restricted PeriodFor purposes of this Section 5.7, the Employee shall keep secret and retain in strictest confidence"Confidential Information" will mean technical, and shall not disclose, rely on or otherwise use for his benefit or the benefit of others, except in connection with the business and affairs other information of the Company and its subsidiaries and affiliatesSeller, all confidential matters relating whether or not in writing, which derives value from not being generally known to the Company Business learned by the Employee on public or after the Effective Date directly to other Persons who can obtain value from its disclosure or indirectly from the Company or its subsidiaries and affiliatesuse, including, without limitation, financial data, financial plans, lists or information with respect to (a) prospective store locationsconcerning actual or potential customers, (b) suppliers and advertisers, information regarding businesses plans and operations, methods and plans of operation, marketing strategies, sales figures (whether per store and distribution plans or otherwise)strategies, (c) profit or loss figures (whether per store or otherwise)cost information, pricing strategies, and (d) customers, clients, suppliers, sources of supply acquisition and customer lists (investment plans. Confidential Information includes information disclosed by third parties that the "Confidential Company Information") and shall not disclose the Confidential Company Information Seller is obligated to anyone outside of the Company or its subsidiaries and affiliates, except with the Company's express written consent and except for Confidential Company Information that (1) is at the time of receipt or thereafter becomes publicly known through no wrongful act of the Employee, (2) is received from a third party not under an obligation to keep such information confidential and without breach of this Agreement or (3) was previously known by the Employee before being employed by the Companymaintain as confidential.
(c) During the Restricted Period, the Employee shall not, without the Company's prior written consent, directly or indirectly, knowingly solicit, recruit or encourage to leave the employment of the Company or its subsidiaries or affiliates, any employee of the Company, such subsidiaries or affiliates, or hire any employee who has left the employment of the Company, its subsidiaries or affiliates after the effective date of this Agreement within one year of the termination of such employee's employment with the Company, its subsidiaries or affiliates.
(d) All memoranda, notes, lists, records and other documents (and all copies thereof) made or compiled by the Employee or made available to the Employee concerning the Company Business or the Company and its subsidiaries and affiliates shall be the Company's property and shall be delivered to the Company at any time on request, provided such property is then possessed by the Employee and can be readily identified as such by him.
(e) For purposes hereof, "Wholesale Business" shall mean any business involving (i) the wholesale distribution of merchandise acquired through purchases of (A) overstocks, (B) closeouts, (C) items liquidated by a manufacturer or by a retail store, (D) merchandise available in connection with bankruptcies or other distress situations, (E) merchandise at or below regular price primarily as a result of the production of the merchandise occurring during periods in which the production facilities otherwise would be idle or would have underutilized capacity or (F) buybacks made by a manufacturer of a competitor's or its own merchandise, or (ii) the importing of types or categories of merchandise with respect to which, at the time the Employee terminates employment or at any time during the Term, the Company (A) transacts (or has transacted) wholesale business, or otherwise sells or purchases (or has sold or purchased) or (B) has committed to sell or purchase; provided that a business shall be deemed to be a Wholesale Business only if it has Ten Million Dollars ($10,000,000) or more in sales from activities described from clauses (i) and
Appears in 1 contract
Sources: Asset Purchase Agreement (American Leisure Holdings Inc)
Covenant Against Competition. The Employee acknowledges that (a) As an essential consideration for the obligations of Buyer under this Agreement, each Seller Party hereby agrees and covenants that:
(i) the principal businesses for a period of the Company and its subsidiaries and affiliates are the "Wholesale Business" (as defined below) and the "Retail Closeout Business" (as defined below) (such businesses, and any and all other businesses that, after the effective date hereof and from time to time during the Term, are engaged in by the Company or its subsidiaries and affiliates herein being collectively referred to as the "Company Business"); (ii) the value of all goodwill resulting from the operation of the Company Business should properly belong to the Company and its subsidiaries and affiliates; (iii) upon the termination of the Employee's employment, the Employee will have no right or interest to such goodwill; (iv) the covenants and agreements of the Employee in this Section 6 are necessary to preserve the value of such goodwill for the benefit of the Company and its subsidiaries and affiliates; (v) the Employee has had and will have access to Confidential Company Information (as defined below); (vi) the Company Business is the same business in which the Employee has and will participate
(a) During the period commencing on the Effective Date and ending on the date twelve (12) months two years following the expiration of Closing Date within the Term (the "Restricted Period")Territory, the Employee each Seller Party shall not in the United States of America (1) engage in the Company Businessnot, directly or indirectly, whether as part of a division or otherwise, for the Employee's own account; (2) render any services to any person or entity (other than the Company or its subsidiaries and affiliates) engaged in such activities, whether as part of a division or otherwise; or (3) become interested in any such person or entity (other than the Company or its subsidiaries and affiliates) as a partner, officer, director, shareholder, principal, agent, employee, consultant shareholder or other equity holder (other than a holding of shares listed on a United States stock exchange or automated quotation system that does not exceed five percent of the outstanding shares so listed), owner, investor, partner or otherwise, individually or in association with any other Person: (A) carry on or engage in any manner in the Restricted Business, (B) solicit customers of the Restricted Business, (C) become the employee of, or otherwise render services on behalf of, any Person that carries on or engages in a business similar to the Restricted Business or (D) induce or attempt to induce any customer, supplier, licensee or business relation of Buyer or any of its Affiliates to cease doing business with Buyer or any of its Affiliates, or in any way interfere with the relationship between any customer, supplier, licensee or business relation of Buyer or any of its Affiliates with Buyer or any of its Affiliates, provided that this Section 5.6(a)(i) shall not prohibit Stockholder’s equity ownership in Horizon Maritime for so long as the Asphalt Business Limitation is satisfied; and
(ii) for a period of four years following the Closing Date, each Seller Party shall not, directly or indirectly, either for himself or any other Person, (A) solicit or induce or attempt to solicit or induce any employee of or independent contractor providing services to Buyer or any of its Affiliates to leave the employ of or to cease providing services to Buyer or any of its Affiliates, (B) in any way interfere with the relationship between Buyer or capacityany of its Affiliates and any employee of or independent contractor providing services to Buyer or any of its Affiliates or (C) employ, or otherwise engage as an employee, independent contractor or otherwise, any employee of Buyer or any of its Affiliates or any independent contractor of Buyer of any of its Affiliates who had been an employee of any Seller Party or its Affiliates.
(b) Any dispute, controversy or claim arising out of or in connection with this Section 5.6, including the alleged breach of this Section 5.6 or a challenge to its validity or enforceability, shall be settled exclusively by final and binding arbitration in Tarrant County, Texas, administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules of the AAA; provided, however, that notwithstanding nothing herein is or shall be deemed to preclude Buyer’s resort to the aboveinterim relief prescribed in Section 5.6(c), below. The arbitrator(s) shall be selected by mutual agreement of the parties, if possible. If the parties fail to reach agreement upon appointment of arbitrator(s) within thirty days following receipt by one party of the other party’s notice of desire to arbitrate, the Employee may ownarbitrator(s) shall be selected from a panel or panels of persons submitted by the AAA. The selection process shall be that which is set forth in the AAA Commercial Arbitration Rules then prevailing, directly except that, if the parties fail to select arbitrator(s) from one or indirectlymore panels, solely as an investment, securities AAA shall not have the power to make appointment(s) but shall continue to submit additional panels until arbitrator(s) have been selected. The jurisdiction of the arbitrator(s) and the arbitrability of any such person claim, defense, issue or entity which are traded objection raised by any party shall be decided by the arbitrator(s) in the first instance. Judgment on the award entered by the arbitrator(s) may be entered by any national securities exchange or Nasdaq market if court having jurisdiction thereof. All aspects of the Employee (A) is not a controlling person of, or a member of a group which controls, such person or entity arbitration and (B) does not, directly or indirectly, matters subject thereto shall remain confidential. The parties will each bear their own four percent (4%) or more of any class of securities of such person or entity.
(b) During attorneys’ fees and after the Restricted Period, the Employee shall keep secret and retain in strictest confidence, and shall not disclose, rely on or otherwise use for his benefit or the benefit of others, except costs in connection with the business and affairs of the Company and its subsidiaries and affiliatesany dispute or controversy, all confidential matters relating to the Company Business learned by the Employee on or after the Effective Date directly or indirectly from the Company or its subsidiaries and affiliates, including, without limitation, information with respect to (a) prospective store locations, (b) sales figures (whether per store or otherwiseexcept as provided in Section 5.6(c), (c) profit or loss figures (whether per store or otherwise), and (d) customers, clients, suppliers, sources of supply and customer lists (the "Confidential Company Information") and shall not disclose the Confidential Company Information to anyone outside of the Company or its subsidiaries and affiliates, except with the Company's express written consent and except for Confidential Company Information that (1) is at the time of receipt or thereafter becomes publicly known through no wrongful act of the Employee, (2) is received from a third party not under an obligation to keep such information confidential and without breach of this Agreement or (3) was previously known by the Employee before being employed by the Companybelow.
(c) During In the Restricted Periodevent of a breach or threatened breach by any Seller Party of any of the provisions of this Section 5.6, Buyer shall have the Employee right to seek interim relief from AAA pursuant to the Optional Rules for Emergency Measures of Protection contained in the Commercial Arbitration Rules of the AAA (including the arbitrator selection procedures provided for in such Optional Rules for Emergency Measures of Protection, which shall notgovern the selection of arbitrator(s) for purposes of this paragraph (c)) or from a court of competent jurisdiction. Seller Parties acknowledge that Buyer will suffer irreparable damage or injury not fully compensable by money damages, or the exact amount of which may be impossible to ascertain, and therefore will not have an adequate legal remedy. Accordingly, Buyer will be entitled to obtain any interim relief necessary or appropriate to prevent or curtail any such breach, threatened or actual, without the Company's prior written consentnecessity of posting security or showing any actual damages or irreparable injury. Such interim relief may include, directly but is not limited to, (i) temporary or indirectly, knowingly solicit, recruit or encourage to leave permanent injunctive relief for the employment of the Company or its subsidiaries or affiliates, any employee of the Company, such subsidiaries or affiliates, or hire any employee who has left the employment of the Company, its subsidiaries or affiliates after the effective date enforcement of this Agreement within one year Section 5.6, (ii) a decree for the specific performance of this Section 5.6 or (iii) Buyer’s reasonable attorneys’ fees, costs and expenses related to such interim relief; provided, however, that Buyer agrees to pay for any Sellers Party’s reasonable attorneys’ fees, costs and expenses related to interim relief sought by Buyer in the termination of event that the Seller Parties prevail and no such employee's employment with interim relief is granted. Such interim relief is in addition to any other rights Buyer may have, including the Company, its subsidiaries or affiliatesright to seek damages.
(d) All memorandaBuyer and each Seller Party hereby agree that this Section 5.6 is a material and substantial part of the transactions contemplated by this Agreement. Each Seller Party further agrees and acknowledges that the covenants in this Section 5.6 are reasonable with respect to their duration, notes, lists, records scope and other documents (and all copies thereof) made or compiled by the Employee or made available to the Employee concerning the Company Business or the Company and its subsidiaries and affiliates shall be the Company's property and shall be delivered to the Company at any time on request, provided such property is then possessed by the Employee and can be readily identified as such by himgeographical area.
(e) For purposes hereofThe covenants in this Section 5.6 are severable and separate, "Wholesale Business" including within provisions, subparts or portions thereof, and the unenforceability of any specific covenant, provision or subpart thereof in this Section 5.6 is not intended by any party hereto to, and shall mean not, affect the provisions of any business involving (i) the wholesale distribution other covenant in this Section 5.6. If any arbitrator or panel of merchandise acquired through purchases of (A) overstocks, (B) closeouts, (C) items liquidated by a manufacturer or by a retail store, (D) merchandise available in connection with bankruptcies or other distress situations, (E) merchandise at or below regular price primarily as a result of the production of the merchandise occurring during periods in which the production facilities otherwise would be idle or would have underutilized capacity or (F) buybacks made by a manufacturer of a competitor's or its own merchandisearbitrators, or any court pursuant to paragraph (iic) above, determines that the importing of types terms, scope, time or categories of merchandise with respect territorial restrictions set forth in Section 5.6(a) are unreasonable as applied to which, at the time the Employee terminates employment or at any time during the Terma Seller Party, the Company (A) transacts (parties hereto acknowledge their mutual intention and agreement that the offending provisions, subparts or has transacted) wholesale business, or otherwise sells or purchases (or has sold or purchasedportions thereof be severed and the remaining provisions and restrictions be enforced to the fullest extent permitted by law as the arbitrator(s) or court (Bpursuant to paragraph (c) has committed to sell or purchase; provided that a business above) deems reasonable, and thereby shall be deemed reformed to that extent. All the covenants, provisions and subparts thereof in this Section 5.6 are intended by each party hereto to, and shall, be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim or cause of action of any Seller Party against Buyer, whether predicated on this Agreement or otherwise, shall not constitute a Wholesale Business only if it has Ten Million Dollars ($10,000,000) defense to the enforcement by Buyer of any covenant, provision or more subpart in sales this Section 5.6. The covenants contained in this Section 5.6 shall not be affected by any breach of any other provision hereof by any party hereto and shall not prevent any Seller Parties from activities described from clauses (i) andrendering services to Buyer in accordance with the Transitional Operating Agreement.
Appears in 1 contract
Covenant Against Competition. The Employee acknowledges that (i) the principal businesses of the Company and its subsidiaries and affiliates are the "Wholesale Business" (as defined below) and the "Retail Closeout Business" (as defined below) (such businesses, and any and all other businesses that, after the effective date hereof and from time to time during the Term, are engaged in by the Company or its subsidiaries and affiliates herein being collectively referred to as the "Company Business"); (ii) the value of all goodwill resulting from the operation of the Company Business should properly belong to the Company and its subsidiaries and affiliates; (iii) upon the termination of the Employee's employment, the Employee will have no right or interest to such goodwill; (iv) the covenants and agreements of the Employee in this Section 6 are necessary to preserve the value of such goodwill for the benefit of the Company and its subsidiaries and affiliates; (v) the Employee has had and will have access to Confidential Company Information (as defined below); (vi) the Company Business is the same business in which the Employee has and will participate
(a) During the In order to induce Purchaser to enter into and perform this Agreement, Seller, Parent and Greenspon each covenant and agree that, for a period commencing of ▇▇▇▇ ▇▇▇rs beginning on the Effective Closing Date and ending on the date twelve (12) months following the expiration fifth anniversary of the Term (Closing Date, neither Seller, Parent nor Greenspon will, without the "Restricted Period"), the Employee shall not in the United States prior written consent of America (1) engage in the Company Business, whether as part of a division or otherwisePu▇▇▇▇▇▇▇, for the EmployeeSeller's, Parent's or Greenspon's own account; (2) render account or jointly with another, direct▇▇ ▇▇ ▇▇▇▇▇ectly, for or on behalf of any services to any person or entity (other than the Company or its subsidiaries and affiliates) engaged in such activitiesPerson, whether as part of a division or otherwise; or (3) become interested in any such person or entity (other than the Company or its subsidiaries and affiliates) as a partner, officer, director, shareholder, principal, agent, employeeshareholder, consultant participant, partner, promoter, manager, consultant, sales representative or otherwise, except on behalf of Purchaser:
(i) engage or invest in, consult with, or own, control, manage, assist or otherwise participate in the ownership, control or management of, or render services or advise to, or lend its name to, any business engaged in the purchase for resale, sale or distribution within the Territory (as defined in ARTICLE 11) (which is the territorial extent of the Seller's Business on the date hereof) of heating, ventilating, air conditioning and refrigeration systems and equipment ("PRODUCTS");
(ii) solicit or assist in the solicitation of any Person having an office or place of business within the Territory and to whom Seller sold or provided any Products on, or during the two year period prior to, the date of the Closing Date, for the purpose of obtaining the patronage of such Person for the purchase of any Products;
(iii) solicit or induce, or in any other relationship manner assist in the solicitation or capacityinducement of, any Person employed by Purchaser after the Closing (as an employee, independent contractor or otherwise) to leave such employment, whether or not such employment is pursuant to a contract and whether or not such employment is at will; provided, however, that notwithstanding it shall not be a violation of this clause (iii) for Seller, Parent or Greenspon to solicit any individual formerly ▇▇▇▇▇▇▇▇ by the aboveSeller and who has been terminated by Purchaser after the Closing; or
(iv) use, disclose or reveal to any Person, any Confidential Information of the Employee may ownSeller's Business; provided, directly or indirectlyhowever, solely as an investmentthat for purposes of this SECTION 2.3, securities Confidential Information shall not include confidential business information that does not constitute a trade secret under applicable Law upon the expiration of any the fifth anniversary of the Closing Date; provided, further that such person or entity which are traded on any national securities exchange or Nasdaq market if the Employee (A) is not obligation shall continue indefinitely with respect to confidential business information that constitutes a controlling person of, or a member of a group which controls, such person or entity and (B) does not, directly or indirectly, own four percent (4%) or more of any class of securities of such person or entitytrade secret under applicable Law.
(b) During and after Notwithstanding anything to the Restricted Periodcontrary contained herein, the Employee shall keep secret and retain in strictest confidence, and it shall not disclose, rely on or otherwise use for his benefit or the benefit of others, except in connection with the business and affairs be a breach of the Company and its subsidiaries and affiliates, all confidential matters relating to the Company Business learned by the Employee on or after the Effective Date directly or indirectly from the Company or its subsidiaries and affiliates, including, without limitation, information with respect to (acovenants contained in SECTION 2.3(a) prospective store locations, (b) sales figures (whether per store or otherwise), (c) profit or loss figures (whether per store or otherwise), and (d) customers, clients, suppliers, sources of supply and customer lists (the "Confidential Company Information") and shall not disclose the Confidential Company Information to anyone outside of the Company or its subsidiaries and affiliates, except with the Company's express written consent and except for Confidential Company Information that (1) is at the time of receipt or thereafter becomes publicly known through no wrongful act of the Employee, (2) is received from a third party not under an obligation to keep such information confidential and without breach of this Agreement or (3) was previously known by the Employee before being employed by the Company.
(c) During the Restricted Period, the Employee shall not, without the Company's prior written consent, directly or indirectly, knowingly solicit, recruit or encourage to leave the employment of the Company or its subsidiaries or affiliates, any employee of the Company, such subsidiaries or affiliates, or hire any employee who has left the employment of the Company, its subsidiaries or affiliates after the effective date of this Agreement within one year of the termination of such employee's employment with the Company, its subsidiaries or affiliates.
(d) All memoranda, notes, lists, records and other documents (and all copies thereof) made or compiled by the Employee or made available to the Employee concerning the Company Business or the Company and its subsidiaries and affiliates shall be the Company's property and shall be delivered to the Company at any time on request, provided such property is then possessed by the Employee and can be readily identified as such by him.
(e) For purposes hereof, "Wholesale Business" shall mean any business involving (i) the wholesale distribution for Seller or Parent to own up to two percent (2%) of merchandise acquired through purchases any class of publicly traded securities of any Person, (ii) for Greenspon to continue to be a shareholder and a direct▇▇ ▇▇ ▇▇▇ent, or (iii) for Parent to own and operate, consistent with past practice, LDR Industries, Inc. and G&S Supply Company, Inc., so long as (A) overstocksLDR Industries, (B) closeouts, (C) items liquidated by a manufacturer or by a retail store, (D) merchandise available in connection with bankruptcies or other distress situations, (E) merchandise at or below regular price primarily as a result of the production of the merchandise occurring during periods in which the production facilities Inc. limits its business activities that would otherwise would be idle or would have underutilized capacity or (F) buybacks made by a manufacturer of a competitor's or its own merchandise, or (ii) the importing of types or categories of merchandise with respect to which, at the time the Employee terminates employment or at any time during the Term, the Company (A) transacts (or has transacted) wholesale business, or otherwise sells or purchases (or has sold or purchased) or (B) has committed to sell or purchase; provided that a business shall be deemed to be a Wholesale Business only if it has Ten Million Dollars ($10,000,000) or more in sales from activities described from clauses (i) andviolate this SECTION
Appears in 1 contract
Covenant Against Competition. The Employee acknowledges that (a) For a period of four years following the date of Closing each of the Sellers shall not (i) directly or indirectly conduct or have any beneficial ownership or equity interest in any Competing Business operating within Purchaser's area of influence, which is within the principal businesses of the Company and its subsidiaries and affiliates are the "Wholesale Business" (geographic area in which Silver ▇▇▇▇▇▇ Mining, Inc. or Career Direction operates, or has commenced business activity, whether such interest is structured as defined below) and the "Retail Closeout Business" (as defined below) (a partner, shareholder, beneficiary, or otherwise, or have any right, option, agreement, understanding, or arrangement to acquire any such businesses, and any and all other businesses that, after the effective date hereof and from time to time during the Term, are engaged in by the Company or its subsidiaries and affiliates herein being collectively referred to as the "Company Business")interest; (ii) solicit, divert, or appropriate, or attempt to solicit, divert, or appropriate to or for a Competing Business the value business of all goodwill resulting from the operation of the Company Business should properly belong to the Company and its subsidiaries and affiliates; (iii) upon the termination of the Employee's employment, the Employee will have no right or interest to such goodwill; (iv) the covenants and agreements of the Employee in this Section 6 are necessary to preserve the value of such goodwill for the benefit of the Company and its subsidiaries and affiliates; (v) the Employee has had and will have access to Confidential Company Information (as defined below); (vi) the Company Business is the same business in which the Employee has and will participate
(a) During the period commencing on the Effective Date and ending on the date twelve (12) months following the expiration of the Term (the "Restricted Period"), the Employee shall not in the United States of America (1) engage in the Company Business, whether as part of a division or otherwise, for the Employee's own account; (2) render any services to any person or entity located within the Area which was a customer of the company on (other than or within one year prior to the Company Closing Date), (iii) induce or attempt to induce any of companies' business contacts to curtail its subsidiaries and affiliatesorders or cancel its business, (iv) induce or attempt to induce any employee of companies to terminate or modify their employment arrangement. For the purposes of this Section 11, "Competing Business" means any business which is engaged in such activities, whether as part the business of a division or otherwise; or (3) become interested in any such person or entity (other than the Company or its subsidiaries International Employment Testing software and affiliates) as a partner, officer, director, shareholder, principal, agent, employee, consultant or in any other relationship or capacity; provided, however, that notwithstanding the above, the Employee may own, directly or indirectly, solely as an investment, securities of any such person or entity which are traded on any national securities exchange or Nasdaq market if the Employee (A) is not a controlling person of, or a member of a group which controls, such person or entity and (B) does not, directly or indirectly, own four percent (4%) or more of any class of securities of such person or entityrelated career fairs.
(b) During and after the Restricted PeriodIf Sellers commit a breach, the Employee shall keep secret and retain in strictest confidence, and shall not disclose, rely on or otherwise use for his benefit or the benefit of others, except in connection with the business and affairs threaten to commit a breach of the Company and its subsidiaries and affiliates, all confidential matters relating to the Company Business learned by the Employee on or after the Effective Date directly or indirectly from the Company or its subsidiaries and affiliates, including, without limitation, information with respect to provisions of subsection (a) prospective store locationsabove, (b) sales figures (whether per store Purchaser shall have the right and remedy to have the provisions of subsection specifically enforced by any court having jurisdiction, it being acknowledged and agreed that any such breach or otherwise), (c) profit or loss figures (whether per store or otherwise), threatened breach will cause irreparable injury to Purchaser and (d) customers, clients, suppliers, sources of supply and customer lists (the "Confidential Company Information") and shall that money damages will not disclose the Confidential Company Information provide remedy to anyone outside of the Company or its subsidiaries and affiliates, except with the Company's express written consent and except for Confidential Company Information that (1) is at the time of receipt or thereafter becomes publicly known through no wrongful act of the Employee, (2) is received from a third party not under an obligation to keep such information confidential and without breach of this Agreement or (3) was previously known by the Employee before being employed by the CompanyPurchaser.
(c) During If any of the Restricted Periodcovenants contained in subsection (a) above, or any part thereof, are hereafter construed to be invalid or unenforceable, the Employee same shall notnot affect the remainder of the covenant or covenants, which shall be given full effect, without regard to the Company's prior written consent, directly or indirectly, knowingly solicit, recruit or encourage to leave the employment invalid portions. If any of the Company covenants contained in subjection (a) above, or its subsidiaries or affiliatesany part thereof, any employee are held to be unenforceable because of the Companyscope or duration of such provision of the geographic area covered thereby, the parties agree that the court making such subsidiaries or affiliatesdetermination shall have the power to reduce the scope, duration, or hire any employee who has left the employment of the Company, its subsidiaries or affiliates after the effective date of this Agreement within one year of the termination area of such employee's employment with the Companyprovision and, in its subsidiaries or affiliatesreduced form, said provision shall then be enforceable.
(d) All memoranda, notes, lists, records and other documents (and all copies thereof) made or compiled by the Employee or made available to the Employee concerning the Company Business or the Company and its subsidiaries and affiliates shall be the Company's property and shall be delivered to the Company at any time on request, provided such property is then possessed by the Employee and can be readily identified as such by him.
(e) For purposes hereof, "Wholesale Business" shall mean any business involving (i) the wholesale distribution of merchandise acquired through purchases of (A) overstocks, (B) closeouts, (C) items liquidated by a manufacturer or by a retail store, (D) merchandise available in connection with bankruptcies or other distress situations, (E) merchandise at or below regular price primarily as a result of the production of the merchandise occurring during periods in which the production facilities otherwise would be idle or would have underutilized capacity or (F) buybacks made by a manufacturer of a competitor's or its own merchandise, or (ii) the importing of types or categories of merchandise with respect to which, at the time the Employee terminates employment or at any time during the Term, the Company (A) transacts (or has transacted) wholesale business, or otherwise sells or purchases (or has sold or purchased) or (B) has committed to sell or purchase; provided that a business shall be deemed to be a Wholesale Business only if it has Ten Million Dollars ($10,000,000) or more in sales from activities described from clauses (i) and
Appears in 1 contract
Sources: Purchase and Sale Agreement (Silver Ramona Mining Co)
Covenant Against Competition. The Employee acknowledges that (a) In order to induce ---------------------------- Purchaser to enter into and perform this Agreement, each Seller and each ▇▇▇▇ Shareholder covenants and agrees that, for a period of five years beginning on the Closing Date, it will not, without the prior written consent of Purchaser, for its own account or jointly with another, directly or indirectly, for or on behalf of any Person, as principal, agent, shareholder, participant, partner, promoter, manager, consultant, sales representative, employee or otherwise, except on behalf of Purchaser:
(i) engage or invest in, consult with, or own, control, manage, assist or otherwise participate in the principal businesses of ownership, control or management of, or render services or advice to, or lend its name to, any business engaged in the Company and its subsidiaries and affiliates are purchase for resale, sale or distribution within the "Wholesale Business" Territory (as defined below) and the "Retail Closeout Business" (as defined belowin ARTICLE 7) (such businesseswhich is the territorial extent of the Sellers' Businesses on the date hereof) of heating, ventilating, air conditioning and any refrigeration systems and all other businesses that, after the effective date hereof and from time to time during the Term, are engaged in by the Company or its subsidiaries and affiliates herein being collectively referred to as the equipment ("Company BusinessPRODUCTS"); ;
(ii) solicit or assist in the value solicitation of all goodwill resulting from any Person having an office or place of business within the operation Territory and to whom either Seller sold or provided any Products on, or during the two year period prior to, the Closing Date, for the purpose of obtaining the Company Business should properly belong to patronage of such Person for the Company and its subsidiaries and affiliates; purchase of any Products;
(iii) upon solicit or induce, or in any manner assist in the termination of the Employee's solicitation or inducement of, any Person employed by either Seller (as an employee, independent contractor or otherwise) to leave such employment, the Employee will have no right whether or interest not such employment is pursuant to a contract and whether or not such goodwillemployment is at will; or
(iv) the covenants and agreements of the Employee in this Section 6 are necessary use, disclose or reveal to preserve the value of such goodwill for the benefit of the Company and its subsidiaries and affiliates; (v) the Employee has had and will have access to any Person, any Confidential Company Information (as defined below); (vi) the Company Business is the same business in which the Employee has and will participate
(a) During the period commencing on the Effective Date and ending on the date twelve (12) months following the expiration of the Term (the "Restricted Period"), the Employee shall not in the United States of America (1) engage in the Company Business, whether as part of a division or otherwise, for the Employee's own account; (2) render any services to any person or entity (other than the Company or its subsidiaries and affiliates) engaged in such activities, whether as part of a division or otherwise; or (3) become interested in any such person or entity (other than the Company or its subsidiaries and affiliates) as a partner, officer, director, shareholder, principal, agent, employee, consultant or in any other relationship or capacity; provided, however, that notwithstanding this SECTION 2.3(A)(IV) shall cease to apply after the abovesecond anniversary of the Closing Date with respect to Confidential Information that does not constitute a trade secret under applicable Law; provided, further, that the Employee may own, directly or indirectly, solely as an investment, securities of any such person or entity which are traded on any national securities exchange or Nasdaq market if the Employee (Aobligations imposed by this SECTION 2.3(A)(IV) is not shall continue indefinitely with respect to Confidential Information that constitutes a controlling person of, or a member of a group which controls, such person or entity and (B) does not, directly or indirectly, own four percent (4%) or more of any class of securities of such person or entitytrade secret under applicable Law.
(b) During Notwithstanding anything herein to the contrary, it shall not be a breach of the covenants contained in SECTION 2.3(A) for Sellers and after the Restricted Period▇▇▇▇ Shareholders, in the aggregate, to own up to three percent of any class of publicly traded securities of any Person.
(c) Although the parties have, in good faith, used their best efforts to make the provisions of this SECTION 2.3 reasonable in both geographic area and in duration in light of the financial aspects of the transaction, and it is not anticipated, nor is it intended, by any party hereto that a Tribunal (as defined in ARTICLE 7) of competent jurisdiction would find it necessary to reform the provisions hereof to make it reasonable in both geographic area or in duration, the Employee shall keep secret parties understand and retain agree that if a Tribunal of competent jurisdiction determines it necessary to reform the scope of this SECTION 2.3 in strictest confidenceorder to make it reasonable in either geographic area or duration, or otherwise, then damages, if any, for a breach hereof, as so reformed, would be deemed to accrue to Purchaser as of and shall not disclosefrom the date of such a breach only in so far as the damages for such breach relate to an action which occurred within the scope of the geographic area or duration as so reformed.
(d) For purposes of this Agreement, rely on or otherwise use for his benefit or the benefit of others"CONFIDENTIAL INFORMATION" means any and all technical, except in connection with the business and affairs other information of the Company and its subsidiaries and affiliateseither Seller (which information is being acquired by Purchaser under this Agreement) which derives economic value, all confidential matters relating actual or potential, from not being generally known to the Company Business learned by the Employee on or after the Effective Date directly or indirectly from the Company or its subsidiaries and affiliatespublic, including, without limitation, technical or nontechnical data, compositions, devices, methods, techniques, drawings, inventions, processes, financial data, financial plans, product plans, lists or information with respect to (a) prospective store locationsconcerning actual or potential customers or suppliers, (b) information regarding business plans and operations, methods and plans of operation, marketing strategies, sales figures (whether per store and distribution plans or otherwise)strategies, (c) profit or loss figures (whether per store or otherwise)cost information, pricing strategies, and (d) customers, clients, suppliers, sources of supply acquisition and customer lists (the "Confidential Company Information") and shall not disclose the Confidential Company Information to anyone outside of the Company or its subsidiaries and affiliates, except with the Company's express written consent and except for Confidential Company Information that (1) is at the time of receipt or thereafter becomes publicly known through no wrongful act of the Employee, (2) is received from a third party not under an obligation to keep such information confidential and without breach of this Agreement or (3) was previously known by the Employee before being employed by the Companyinvestment plans.
(c) During the Restricted Period, the Employee shall not, without the Company's prior written consent, directly or indirectly, knowingly solicit, recruit or encourage to leave the employment of the Company or its subsidiaries or affiliates, any employee of the Company, such subsidiaries or affiliates, or hire any employee who has left the employment of the Company, its subsidiaries or affiliates after the effective date of this Agreement within one year of the termination of such employee's employment with the Company, its subsidiaries or affiliates.
(d) All memoranda, notes, lists, records and other documents (and all copies thereof) made or compiled by the Employee or made available to the Employee concerning the Company Business or the Company and its subsidiaries and affiliates shall be the Company's property and shall be delivered to the Company at any time on request, provided such property is then possessed by the Employee and can be readily identified as such by him.
(e) For purposes hereof, "Wholesale Business" shall mean any business involving (i) the wholesale distribution of merchandise acquired through purchases of (A) overstocks, (B) closeouts, (C) items liquidated by a manufacturer or by a retail store, (D) merchandise available in connection with bankruptcies or other distress situations, (E) merchandise at or below regular price primarily as a result of the production of the merchandise occurring during periods in which the production facilities otherwise would be idle or would have underutilized capacity or (F) buybacks made by a manufacturer of a competitor's or its own merchandise, or (ii) the importing of types or categories of merchandise with respect to which, at the time the Employee terminates employment or at any time during the Term, the Company (A) transacts (or has transacted) wholesale business, or otherwise sells or purchases (or has sold or purchased) or (B) has committed to sell or purchase; provided that a business shall be deemed to be a Wholesale Business only if it has Ten Million Dollars ($10,000,000) or more in sales from activities described from clauses (i) and
Appears in 1 contract