Covenant Not to Compete and Related Covenants. (a) To further ensure that Buyer receives the expected benefits of acquiring the Business, each Seller (the “Non-Compete Parties”) agrees that (subject to the other terms of this Section 5.6), throughout the period that begins at the Effective Time and ends on the third anniversary of the Closing Date (the “Non-Compete Period”), the Non-Compete Parties will not, and the Non-Compete Parties will cause each Affiliate controlled by the applicable Non-Compete Party not to, directly or indirectly: (1) engage in the Business, or assist others to engage in the Business, in the United States; (2) have an interest in any Person that engages directly or indirectly in the Business in the United States in any capacity, including as a partner, shareholder, member, principal, agent, or trustee (provided that any Seller may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if such Seller is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own 5% or more of any class of securities of such Person; (3) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between Buyer and customers or suppliers of the Business acquired hereunder; (4) recruit, solicit, hire or induce, or attempt to recruit, hire or induce, any individual who is then a director, officer or employee of Buyer or of any Affiliate of Buyer or otherwise interfere with or disrupt any such employment relationship (contractual or otherwise) of Buyer or of any Affiliate of Buyer, provided that, the use of general solicitations such as newspaper advertisements, other publicly disseminated job advertisements shall not be prohibited and Sellers shall not be prohibited from hiring any such individual to the extent resulting from such general solicitation; (5) solicit, divert or take away, or attempt to solicit, divert or to take away, the hardware and/or software products and/or services business or patronage of any then current customer, supplier or other business contact of the Business, or solicit, request, advise or induce any such Person to otherwise adversely change its business or relationship with Buyer or of any Affiliate of Buyer; or (6) criticize or disparage in any manner or by any means (whether written or oral, express or implied) Buyer or any Affiliate of Buyer or any aspect of Buyer’s or any of Buyer’s Affiliate’s management, policies, operations, products, services, practices or personnel, except in connection with a Proceeding. (b) Each of the Non-Compete Parties specifically acknowledges and agrees that (1) this Section 5.6 is reasonable and necessary to ensure that Buyer receives the expected benefits of acquiring the Business, (2) Buyer has refused to enter into this Agreement in the absence of this Section 5.6 and (3) breach of this Section 5.6 will harm Buyer to such an extent that monetary damages alone would be an inadequate remedy and Buyer would not have an adequate remedy at law. Therefore, in the event of a breach by any of the Non-Compete Parties of this Section 5.6, (A) Buyer (in addition to all other remedies Buyer may have) will be entitled to seek injunctive and other equitable relief (without posting any bond or other security) restraining any of the Non-Compete Parties (as applicable) from committing or continuing such breach and to enforce specifically this Agreement and its terms and (B) for any of the Non-Compete Parties (as applicable), the duration of the Non-Compete Period will be extended beyond its then-scheduled termination date for a period equal to the duration of such breach. (c) Solely for purposes of Sections 5.6(a) and 5.6(b), “managed services” in the definition of “Business” is limited to managed services to Enterprise Customers.
Appears in 1 contract
Covenant Not to Compete and Related Covenants. (a) To further ensure that Buyer receives the expected benefits of acquiring the BusinessCompany Interests, each Seller (the “Non-Compete Parties”) agrees that (subject to the other terms of this Section 5.66.6), throughout the period that begins at the Effective Time and ends on the third fifth anniversary of the Closing Date (the “Non-Compete Period”), the Non-Compete Parties each Seller will not, and the Non-Compete Parties each Seller will cause each Affiliate controlled by the applicable Non-Compete Party of each Seller not to, directly or indirectly:
(1) engage own, operate, be a partner, equity holder, co-venturer or otherwise invest in, lend money to, consult with, manage or render services to, act as agent for, license any Intellectual Property to, or acquire or hold any interest in, any Person that engages in the Business, or assist others to engage Business anywhere in the Businessworld, in except that nothing herein prohibits any Seller or any Affiliate of any Seller from owning or holding less than 5% of the United Statesoutstanding shares of any class of stock that is regularly traded on a recognized domestic or foreign securities exchange or over-the-counter market;
(2) have an interest in any Person that engages directly or indirectly in the Business in the United States in any capacity, including as a partner, shareholder, member, principal, agent, or trustee (provided that any Seller may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if such Seller is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own 5% or more of any class of securities of such Person;
(3) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between Buyer and customers or suppliers of the Business acquired hereunder;
(4) recruit, solicit, hire or induce, employ or attempt to recruit, hire or induce, employ any individual who is then a director, officer or employee of Buyer or of any Affiliate of Buyer Employee or otherwise interfere with or disrupt any such employment relationship (contractual or otherwiseother) of the Company, Buyer or any of any Affiliate of Buyertheir Affiliates with such Employee; provided, provided thathowever, that the use of general solicitations such as newspaper advertisements, other publicly disseminated job advertisements foregoing restrictions shall not be prohibited apply to an Employee who (A) is terminated by the Company, Buyer or their Affiliates or (B) resigns from the employment of the Company, Buyer or their Affiliates, provided, in each case, that at least six or more months have passed since such Employee’s termination or resignation; provided, further, and Sellers notwithstanding the foregoing, that if any Seller or any of their Affiliates hires any individual identified on Exhibit 6.6(a)(2) at any time before three (3) years following such Employee’s termination or resignation, then such Seller involved in such hiring shall not be prohibited from hiring any pay Buyer three times such individual to the extent resulting from individual’s salary at such general solicitation;time; or
(53) solicit, divert request, advise or take away, induce any then-current or attempt to solicit, divert or to take away, the hardware and/or software products and/or services business or patronage of any then current potential customer, supplier or other business contact of the BusinessCompany, Buyer or any of their Affiliates, or solicitany of the foregoing, requestin each case, advise to whom the Company provided products or induce any such Person services (or solicited to do the same) during the 36-month period immediately preceding the Closing, to cancel, curtail or otherwise adversely change its business or relationship with the Company, Buyer or any of any Affiliate of Buyer; ortheir Affiliates.
(6b) To further ensure that Buyer receives the expected benefits of acquiring the Company Interests, each Seller agrees that (subject to the other terms of this Section 6.6), at all times after the Effective Time, each Seller will not, and each Seller will cause its Affiliates not to, directly or indirectly, criticize or disparage in any manner or by any means (whether written or oral, express or implied) the Company, Buyer or any Affiliate of Buyer their Affiliates or any aspect of the Company’s, Buyer’s or any of Buyer’s Affiliate’s management, their Affiliates policies, operations, products, services, services practices or publicly identified management or personnel. Notwithstanding the foregoing, except nothing in this Section 6.6 shall prohibit any Seller from conferring in confidence with such Seller’s advisors, making truthful statements or communications as required by Applicable Law, making statements or communications in good faith in connection with a Proceedingwith, or in furtherance of, exercising such Seller’s rights under this Agreement, or as permitted under Section 6.3(b).
(bc) Each of the Non-Compete Parties Seller specifically acknowledges and agrees that (1) this Section 5.6 6.6 is reasonable and necessary to ensure that Buyer receives the expected benefits of acquiring the BusinessCompany Interests, (2) Buyer has refused to enter into this Agreement in the absence of this Section 5.6 6.6 and (3) breach of this Section 5.6 6.6 will harm Buyer to such an extent that monetary damages alone would be an inadequate remedy and Buyer would not have an adequate remedy at law. Therefore, in the event of a breach by any of the Non-Compete Parties Seller of this Section 5.66.6, as determined by a court of competent jurisdiction, (A) Buyer (in addition to all other remedies Buyer may have) will be entitled to seek injunctive an injunction and other equitable relief (without posting any bond or other security) restraining any of the Non-Compete Parties (as applicable) Seller from committing or continuing such breach and to enforce specifically this Agreement and its terms and (B) for any of the Non-Compete Parties (as applicable), the duration of the Non-Compete Period will be extended beyond its then-scheduled termination date for a period equal to the duration of such breach.
(c) Solely for purposes of Sections 5.6(a) and 5.6(b), “managed services” in the definition of “Business” is limited to managed services to Enterprise Customers.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (SPS Commerce Inc)
Covenant Not to Compete and Related Covenants. (a) To further ensure that Buyer receives the expected benefits of acquiring the Business, each Seller of the Company, HTL, Xxxxx, Xxxxxxx Xxxxxxxxxx and Xxxxx Xxxxxxxxxx (the “Non-Compete Parties”) agrees that (subject to the other terms of this Section 5.65.8), throughout the period that begins at the Effective Time and ends on the third anniversary of the Closing Date (the “Non-Compete Period”), the Non-Compete Parties will not, and the Non-Compete Parties will cause each Affiliate controlled by of each of the applicable Non-Compete Party Parties not to, directly or indirectly:,
(1) engage own, operate, be a partner, stockholder, co-venturer or otherwise invest in, lend money to, consult with, manage or render services to, act as agent for, license any Intellectual Property to, or acquire or hold any interest in, any Person that sells, markets or provides electronic data interchange to third parties anywhere in the Businessworld, except that nothing herein prohibits any of the Non-Compete Parties or assist others to engage in any Affiliate of any of the Business, in Non-Compete Parties from owning or holding less than 1% of the United Statesoutstanding shares of any class of stock that is regularly traded on a recognized domestic or foreign securities exchange or over-the-counter market;
(2) have an interest in employ or attempt to employ any Person that engages directly or indirectly in the Business in the United States in any capacity, including as a partner, shareholder, member, principal, agent, or trustee individual (provided that each of Xxxxxxx Xxxxxxxxxx and Xxxxx Xxxxxxxxxx may employ himself or the other, including through the Company, HTL or Xxxxx or any Seller other entity owned by him or the other, as applicable; provided further, however, that neither Xxxxxxx Xxxxxxxxxx nor Xxxxx Xxxxxxxxxx may ownemploy the other (other than through the Company), directly including through HTL or indirectlyXxxxx or any other entity owned by him or the other, solely as an investmentapplicable, securities of any Person traded throughout the period that begins on any national securities exchange if such Seller is not a controlling Person of, or a member of a group which controls, such Person the Effective Time and does not, directly or indirectly, own 5% or more of any class of securities of such Person;
(3) intentionally interfere in any material respect with the business relationships (whether formed prior to or ends eighteen months after the date of this AgreementClosing Date) between Buyer and customers or suppliers of the Business acquired hereunder;
(4) recruit, solicit, hire or induce, or attempt to recruit, hire or induce, any individual who is then now or later becomes a director, officer or employee of Buyer or of any Affiliate of Buyer or otherwise interfere with or disrupt any such employment relationship (contractual or otherwiseother) of Buyer or of any Affiliate of BuyerBuyer (provided, provided thatsomeone who first serves as a director, the use officer or employee of general solicitations such as newspaper advertisementsa Non-Compete Party and who later becomes a director, other publicly disseminated job advertisements shall officer or employee of Buyer will not be prohibited and Sellers shall not be prohibited from hiring any such individual to the extent resulting from such general solicitationconstitute a breach of this covenant);
(53) (A) solicit, divert request, advise or take away, induce any then-current or attempt to solicit, divert or to take away, the hardware and/or software products and/or services business or patronage of any then current potential customer, supplier or other business contact of the BusinessBuyer or of any Affiliate of Buyer to cancel, curtail or solicit, request, advise or induce any such Person to otherwise adversely change its business or relationship with Buyer or of any Affiliate of Buyer or (B) fail to refer all material customer inquiries relating to the Business to Buyer; or
(64) criticize or disparage in any manner or by any means (whether written or oral, express or implied) Buyer or any Affiliate of Buyer or any aspect of Buyer’s or any of Buyer’s Affiliate’s management, policies, operations, products, services, practices or personnel, except in connection with a Proceeding.
(b) Each of the Non-Compete Parties specifically acknowledges and agrees that (1) this Section 5.6 5.8 is reasonable and necessary to ensure that Buyer receives the expected benefits of acquiring the Business, (2) Buyer has refused to enter into this Agreement in the absence of this Section 5.6 5.8 and (3) breach of this Section 5.6 5.8 will harm Buyer to such an extent that monetary damages alone would be an inadequate remedy and Buyer would not have an adequate remedy at law. Therefore, in the event of a breach by any of the Non-Compete Parties of this Section 5.65.8, (A) Buyer (in addition to all other remedies Buyer may have) will be entitled to seek injunctive an injunction and other equitable relief (without posting any bond or other security) restraining any of the Non-Compete Parties (as applicable) from committing or continuing such breach and to enforce specifically this Agreement and its terms and (B) for any of the Non-Compete Parties (as applicable), the duration of the Non-Compete Period will be extended beyond its then-scheduled termination date for a period equal to the duration of such breach.
(c) Solely for purposes of Sections 5.6(a) and 5.6(b), “managed services” in the definition of “Business” is limited to managed services to Enterprise Customers.
Appears in 1 contract
Covenant Not to Compete and Related Covenants. (a) To further ensure that Buyer receives the expected benefits of acquiring the Business, each Seller (the “Non-Compete Parties”) agrees that (subject to the other terms of this Section 5.6), throughout the period that begins at the Effective Time and ends on the third anniversary of the Closing Date (the “Non-Compete Period”), the Non-Compete Parties will not, and the Non-Compete Parties will cause each Affiliate controlled by the applicable Non-Compete Party not to, directly or indirectly:
(1) engage in the Business, or assist others to engage in the Business, in the United States;
(2) have an interest in any Person that engages directly or indirectly in the Business in the United States in any capacity, including as a partner, shareholder, member, principal, agent, or trustee (provided that any Seller may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if such Seller is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own 5% or more of any class of securities of such Person;
(3) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between Buyer and customers or suppliers of the Business acquired hereunder;
(4) recruit, solicit, hire or induce, or attempt to recruit, hire or induce, any individual who is then a director, officer or employee of Buyer or of any Affiliate of Buyer or otherwise interfere with or disrupt any such employment relationship (contractual or otherwise) of Buyer or of any Affiliate of Buyer, provided that, the use of general solicitations such as newspaper advertisements, other publicly disseminated job advertisements shall not be prohibited and Sellers shall not be prohibited from hiring any such individual to the extent resulting from such general solicitation;
(5) solicit, divert or take away, or attempt to solicit, divert or to take away, the hardware and/or software products and/or services business or patronage of any then current customer, supplier or other business contact of the Business, or solicit, request, advise or induce any such Person to otherwise adversely change its business or relationship with Buyer or of any Affiliate of Buyer; or
(6) criticize or disparage in any manner or by any means (whether written or oral, express or implied) Buyer or any Affiliate of Buyer or any aspect of Buyer’s or any of Buyer’s Affiliate’s management, policies, operations, products, services, practices or personnel, except in connection with a Proceeding.
(b) Each of the Non-Compete Parties specifically acknowledges and agrees that (1) this Section 5.6 is reasonable and necessary to ensure that Buyer receives the expected benefits of acquiring the Business, (2) Buyer has refused to enter into this Agreement in the absence of this Section 5.6 and (3) breach of this Section 5.6 will harm Buyer to such an extent that monetary damages alone would be an inadequate remedy and Buyer would not have an adequate remedy at law. Therefore, in the event of a breach by any of the Non-Compete Parties of this Section 5.6, (A) Buyer (in addition to all other remedies Buyer may have) will be entitled to seek injunctive and other equitable relief (without posting any bond or other security) restraining any of the Non-Compete Parties (as applicable) from committing or continuing such breach and to enforce specifically this Agreement and its terms and (B) for any of the Non-Compete Parties (as applicable), the duration of the Non-Compete Period will be extended beyond its then-scheduled termination date for a period equal to the duration of such breach.
(c) Solely for purposes of Sections 5.6(a) and 5.6(b), “managed services” in the definition of “Business” is limited to managed services to Enterprise Customers.
Appears in 1 contract
Samples: Asset Purchase Agreement (Midas Medici Group Holdings, Inc.)
Covenant Not to Compete and Related Covenants. (a) To further ensure that Buyer receives the expected benefits of acquiring the BusinessInterests, each Seller (the “Non-Compete Parties”) agrees that (subject to the other terms of this Section 5.6)that, throughout the period that begins at on the Effective Time date hereof and ends on the third fifth anniversary of the Closing Date (the “Non-Compete Period”), the Non-Compete Parties it will not, and the Non-Compete Parties each Seller will cause each Affiliate controlled by of the applicable Non-Compete Party Seller’s Affiliates not to, directly or indirectly:
(1) engage in the Businessown, operate, be a partner, stockholder, co-venturer or otherwise invest in, lend money to, consult with, manage or render services to, act as agent for, license any intellectual property to, or assist others acquire or hold any interest in, any Person that conducts any gaming or related operations (or develops, constructs or finances any facility for gaming or related operations) located within 125 miles of the Firekeepers Casino; provided that nothing herein prohibits any Seller or any of Seller’s Affiliates from owning or holding less than 1% of the outstanding shares of any class of stock that is regularly traded on a recognized domestic or foreign securities exchange or over-the-counter market; [***]; [***] Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to engage in the Business, in the United States;omitted parties.
(2) have an interest in any Person that engages directly or indirectly in the Business in the United States in any capacity, including as a partner, shareholder, member, principal, agent, or trustee (provided that any Seller may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if such Seller is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own 5% or more of any class of securities of such Person;
(3) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between Buyer and customers or suppliers of the Business acquired hereunder;
(4) recruit, solicit, hire or induce, employ or attempt to recruit, hire or induce, employ any individual who is then now or later becomes a director, officer or manager-level or above employee of Firekeepers Casino, Buyer or of any Affiliate of Buyer the Tribe, or otherwise interfere with or disrupt any such employment relationship (contractual or otherwiseother) of Firekeepers Casino, Buyer or the Tribe, except that nothing herein prohibits any Seller or an Affiliate of any Seller from any (A) general solicitation for employment (including in any newspaper or magazine, over the internet or by any search or employment agency) if not specifically directed towards any employee of Firekeepers Casino, Buyer or the Tribe or (B) hiring of any individual where the initial contact with such individual regarding such hiring primarily arose from (x) any such general solicitation or (y) initial contact by such individual that was unsolicited by any Seller or any Affiliate of Buyer, provided that, the use of general solicitations such as newspaper advertisements, other publicly disseminated job advertisements shall not be prohibited and Sellers shall not be prohibited from hiring any such individual to the extent resulting from such general solicitation;
(5) solicit, divert or take away, or attempt to solicit, divert or to take away, the hardware and/or software products and/or services business or patronage of any then current customer, supplier or other business contact of the Business, or solicit, request, advise or induce any such Person to otherwise adversely change its business or relationship with Buyer or of any Affiliate of BuyerSeller; or
(63) criticize or disparage in any manner or by any means (whether written or oral, express or implied) Buyer the Firekeepers Casino, Buyer, the Tribe, or any Affiliate of Buyer or the Tribe or any aspect of the Firekeepers Casino’s, Buyer’s or the Tribe’s or any of Buyer’s Affiliate’s their Affiliates’ management, policies, operations, products, services, practices or personnel, except in connection with a Proceeding.
(b) Each of the Non-Compete Parties Sellers specifically acknowledges acknowledge and agrees agree that (1) this Section 5.6 is reasonable and necessary to ensure that Buyer receives the expected benefits of acquiring the Business, (2) Buyer has refused to enter into this Agreement in the absence of this Section 5.6 5.9 and (32) breach of this Section 5.6 5.9 will harm Buyer to such an extent that monetary damages alone would be an inadequate remedy and Buyer would not have an adequate remedy at law. Therefore, in the event of a breach by any of the Non-Compete Parties Seller of this Section 5.65.9, (A) Buyer (in addition to all other remedies Buyer may have) will be entitled to seek injunctive an injunction and other equitable relief (without posting any bond or other security) restraining any of the Non-Compete Parties Seller and its Affiliates (as applicable) from committing or continuing such breach and to enforce specifically this Agreement and its terms and (B) for any of the Non-Compete Parties Seller and its Affiliates (as applicable), the duration of the Non-Compete Period will be extended beyond its then-scheduled termination date for a period equal to the duration of such breach.
(c) Solely for purposes Buyer agrees that (subject to the other terms of Sections 5.6(a) and 5.6(bthis Section 5.9), “managed throughout the Non-Compete Period, it will not, and it will cause each of its Affiliates not to, directly or indirectly criticize or disparage in any manner or by any means (whether written or oral, express or implied) the Company or any Affiliate of the Company or the Sellers, or any aspect of the Company’s or Sellers’ or any of their Affiliates’ management, policies, operations, products, services” in the definition of “Business” is limited to managed services to Enterprise Customers, practices or personnel.
Appears in 1 contract
