Covenant Not to Compete; Non-Solicitation. (a) Until the third anniversary of the Closing Date, neither Seller nor any Seller Entity shall, anywhere in the world, as an owner, consultant, joint venturer, member of a limited liability company, general partner, controlling shareholder of a privately-held corporation or shareholder to the extent of twenty-five percent (25%) or more of the outstanding shares of a publicly-held corporation, either directly or indirectly, engage or participate in or assist others in engaging or participating in the business of designing, manufacturing and/or marketing products that are directly competitive with the products of the Business existing or under development as of the Closing (“Competitive Products”); provided, however, that the foregoing shall not restrict or prohibit Seller or any Seller Entity from (i) engaging in any business in which Seller or any Seller Entity is engaged immediately following the Closing Date and in businesses which represent normal growth and expansion therefrom or thereof, including engaging or participating in designing, marketing or selling services that relate to, or data storage or information management products that are used in, the Business, including through the Seller’s and the Seller Entities’ digital solutions and services and data storage and information management business units; (ii) manufacturing, marketing and selling products and systems that contain Competitive Products, provided that any such Competitive Product is incidental to the primary use or purpose of such products or systems; (iii) acquiring any corporation, partnership or other entity or business, in whole or in part, whether by asset acquisition, stock acquisition, statutory merger or otherwise, provided that, not more than twenty-five percent (25%) of the revenue of such entity or business being acquired by Seller or any Seller Entity for its immediately preceding completed fiscal year is derived from the sale of Competitive Products; provided, however, that this clause (iii) shall not be deemed to be violated if, within six (6) months after the consummation of such acquisition, Seller or the Seller Entity involved divests itself of or discontinues the business described above such that not more than twenty-five percent (25%) of the revenue of the acquired entity, as applicable, for its next full fiscal year are derived from Competitive Products; or (iv) being acquired by any corporation, partnership or other entity or business, in whole or in part, whether by asset acquisition, stock acquisition, statutory merger or otherwise (in which case this Section 6.07 shall not apply to or otherwise bind the corporation, partnership or other entity or business acquiring Seller or any Seller Entity in any such transaction). (b) For a period of one (1) year after the Closing Date, Seller shall not, without Buyer’s prior written consent, directly or indirectly, solicit for employment, hire as an employee, consultant or contractor or otherwise engage any Direct Employee, 100% Indirect Employee or Partial Indirect Employee who has been offered employment by Buyer pursuant to Section 7.03 hereof; provided, however, that the foregoing shall not apply to (i) any Partial Indirect Employee who does not accept an offer of employment by Buyer pursuant to the terms of Section 7.03 hereof or (ii) any Employee who has accepted an offer of employment by Buyer pursuant to the terms of Section 7.03 but who is no longer employed by Buyer at the xxxx Xxxxxx solicits such employee for employment (except for Employees who resign employment with Buyer or whose employment is terminated for cause).
Appears in 1 contract
Covenant Not to Compete; Non-Solicitation. (a) Until During the period commencing on the Closing Date and continuing until the third anniversary of the Closing DateDate (the "Noncompetition Period"), neither the Seller nor any Seller Entity shallshall not (and shall cause each Noncompetition Party (as defined below) not to), anywhere in the world, as an owner, consultant, joint venturer, member of a limited liability company, general partner, controlling shareholder of a privately-held corporation or shareholder to the extent of twenty-five percent (25%) or more of the outstanding shares of a publicly-held corporation, either directly or indirectly, engage (a) own, manage, operate or participate in or assist others in engaging or participating control any business in the business United States, Canada, North America or the rest of designingthe world that develops, manufacturing and/or marketing products that are directly competitive manufacturers and sells any Competitive Products (as defined below) in competition with the products business activities conducted by the Company and the Subsidiary on the date hereof (a "Competitive Business") or (b) solicit (other than by general advertising) any of the Business existing officers, management or under development key employees of the Company as of the Closing (“Competitive Products”)Date to terminate his or her employment with the Company or the Subsidiary; provided, however, that the foregoing covenant shall not restrict prohibit, or prohibit Seller or be interpreted as prohibiting, any Seller Entity Noncompetition Party from (i) engaging continuing in any line of business in which Seller or conducted by any Seller Entity is engaged immediately following Noncompetition Party (other than the Closing Date and in businesses which represent normal growth and expansion therefrom or thereof, including engaging or participating in designing, marketing or selling services that relate to, or data storage or information management products that are used in, the Business, including through the Seller’s Company and the Seller Entities’ digital solutions and services and data storage and information management Subsidiary) on the date hereof, regardless of whether any such business unitsis a Competitive Business; (ii) manufacturing, marketing and manufacturing or selling products and systems that contain raw materials or components used in or sold to a Competitive Products, provided that any such Competitive Product is incidental to the primary use or purpose of such products or systemsBusiness; (iii) entering into any relationship with a person or entity not owned, managed, operated or controlled by any Noncompetition Party for purposes primarily unrelated to a Competitive Business; (iv) making equity investments in publicly owned companies which conduct a Competitive Business, provided such investments do not confer control of any such company upon any Noncompetition Party; or (v) acquiring any corporationperson or entity which conducts a Competitive Business if either (x) in the calendar year prior to such acquisition, partnership the revenues of such person or other entity from its Competitive Business do not constitute more than 25% of the total revenues of such person or entity or business, in whole or in part, whether by asset acquisition, stock acquisition, statutory merger or otherwise, provided that, not more than twenty-five percent (25%y) the applicable Noncompetition Party promptly commences and thereafter pursues for a period of 12 months after such acquisition the transfer of that portion of the revenue business of such person or entity or business being acquired as constitutes a Competitive Business upon terms and conditions and at a price determined by Seller or any Seller Entity the applicable Noncompetition Party in its sole discretion, failing which the applicable Noncompetition Party shall for its immediately preceding completed fiscal year is derived from a period of three months following such 12 month period negotiate with the Buyer in good faith for the sale of such Competitive Products; provided, however, that this clause (iii) shall not be deemed to be violated if, within six (6) months after the consummation of such acquisition, Seller or the Seller Entity involved divests itself of or discontinues the business described above such that not more than twenty-five percent (25%) of the revenue of the acquired entity, as applicable, for its next full fiscal year are derived from Competitive Products; or (iv) being acquired by any corporation, partnership or other entity or business, in whole or in part, whether by asset acquisition, stock acquisition, statutory merger or otherwise (in which case this Section 6.07 shall not apply to or otherwise bind the corporation, partnership or other entity or business acquiring Seller or any Seller Entity in any such transaction).
(b) For a period of one (1) year after the Closing Date, Seller shall not, without Buyer’s prior written consent, directly or indirectly, solicit for employment, hire as an employee, consultant or contractor or otherwise engage any Direct Employee, 100% Indirect Employee or Partial Indirect Employee who has been offered employment by Buyer pursuant to Section 7.03 hereof; provided, however, that the foregoing shall not apply to (i) any Partial Indirect Employee who does not accept an offer of employment by Buyer pursuant Business to the Buyer on terms of Section 7.03 hereof or (ii) any Employee who has accepted an offer of employment by Buyer pursuant and conditions and at a price mutually agreeable to the terms of Section 7.03 but who is no longer employed by Buyer at the xxxx Xxxxxx solicits such employee for employment (except for Employees who resign employment with Buyer or whose employment is terminated for cause).applicable
Appears in 1 contract
Covenant Not to Compete; Non-Solicitation. (a) Until the third anniversary For a period of two (2) years after the Closing Date, neither the Seller nor any Seller Entity shalland Parent shall not, anywhere in the worldand shall cause their Affiliates not to, directly or indirectly (whether as an ownerprincipal, agent, shareholder, employee, officer, director, consultant, joint joint-venturer, member of a limited liability companypartner or otherwise) own, general partnermanage, controlling shareholder of a privately-held corporation or shareholder to the extent of twenty-five percent (25%) or more of the outstanding shares of a publicly-held corporationoperate, either directly or indirectlyjoin, engage control or participate in the ownership, management, operation of, render any services to or assist others be connected in engaging any manner with any business which competes in any way with any business actually engaged in or participating being developed by the Business in the business State of designingNew Jersey, manufacturing and/or marketing products that are directly competitive with the products of the Business existing or under development as of the Closing Date (“Competitive Products”a "Competing Business"); provided, however, provided that neither the foregoing shall not restrict or prohibit Seller or any Seller Entity from (inor the Parent will be in breach of this Section 7.6(a) engaging by reason of making an investment in any business company the securities of which are listed on a national securities exchange or actively traded in which Seller or any Seller Entity is engaged immediately following the Closing Date and in businesses which represent normal growth and expansion therefrom or thereofover-the-counter market, including engaging or participating in designingso long as such investment, marketing or selling services that relate to, or data storage or information management products that are used in, the Business, including through the Seller’s and together with all such other investments of the Seller Entities’ digital solutions and services and data storage and information management business units; (ii) manufacturing, marketing and selling products and systems that contain Competitive Products, provided that any such Competitive Product is incidental to the primary use Parent does not equal or purpose of such products or systems; (iii) acquiring any corporation, partnership or other entity or business, in whole or in part, whether by asset acquisition, stock acquisition, statutory merger or otherwise, provided that, not more than twenty-exceed five percent (255%) in the aggregate of the revenue total number of outstanding shares of common stock of such entity or business being acquired by Seller or any Seller Entity company. The parties intend that the covenant contained in the preceding sentence shall be construed as a series of separate covenants, one for its immediately preceding completed fiscal year is derived from each county and city included within the sale State of Competitive Products; providedNew Jersey and, howeverexcept for geographic coverage, that this clause (iii) each such separate covenant shall not be deemed to be violated if, within six (6) months after the consummation of such acquisition, Seller or the Seller Entity involved divests itself of or discontinues the business described above such that not more than twenty-five percent (25%) of the revenue of the acquired entity, as applicable, for its next full fiscal year are derived from Competitive Products; or (iv) being acquired by any corporation, partnership or other entity or business, in whole or in part, whether by asset acquisition, stock acquisition, statutory merger or otherwise (in which case this Section 6.07 shall not apply to or otherwise bind the corporation, partnership or other entity or business acquiring Seller or any Seller Entity in any such transaction)identical.
(b) For a period of one three (13) year years after the Closing Date, the Seller and Parent shall not, without Buyer’s prior written consentand shall cause their Affiliates not to, directly or indirectlyindirectly (whether as principal, solicit for employmentagent, hire as an shareholder, employee, officer, director, joint-venturer, partner, consultant or contractor otherwise), solicit, raid, entice or otherwise engage induce any Direct Person who was as of the date of this Agreement or the Closing Date a Business Employee, 100% Indirect Employee who is or Partial Indirect Employee who has been employed by the Buyer or an Affiliate of the Buyer, to terminate his or her employment with the Buyer or become employed by any other Person, and he will not approach any such Business Employee for such purpose or authorize or knowingly approve the taking of such action by other persons to become employed in a Competing Business.
(c) Notwithstanding anything to the contrary contained herein, the restrictions contained in Sections 7.6(a) and (b) shall not prohibit the Seller or Parent or their Affiliates from owning or operating a home health care business in a state other than the State of New Jersey and the Buyer acknowledges that the Seller and the Parent will continue to own and operate a home health care business in State of New York.
(d) It is the desire and intent of the parties hereto that the provisions of this Section 7.6 shall be enforced to the fullest extent permitted under the Laws and public policies of each jurisdiction in which enforcement is sought. If any court determines that any provision of this Section 7.6 is unenforceable, such court will have the power to reduce the duration or scope of such provision, as the case may be, or terminate such provision and, in reduced form, such provision shall be enforceable; it is the intention of the parties hereto that the foregoing restrictions shall not be terminated, unless so terminated by a court, but shall be deemed amended to the extent required to render them valid and enforceable, such amendment to apply only with respect to the operation of this Section 7.6 in the jurisdiction of the court that has made the adjudication.
(e) The parties acknowledge and agree that the restrictions contained in Sections 7.6(a) and (b) are a reasonable and necessary protection of the immediate interests of the Buyer, and any violation of these restrictions would cause substantial injury to the Buyer and that the Buyer would not have entered into this Agreement without receiving the additional consideration offered employment by the Seller and Parent in binding themselves to these restrictions. In the event of a breach or a threatened breach by the Seller or Parent or any of their Affiliates of these restrictions, the Buyer pursuant will be entitled to Section 7.03 hereofan injunction restraining either or both of the Seller and Parent or any of their Affiliates from such breach or threatened breach; provided, however, that the foregoing shall right to injunctive relief will not apply to (i) be construed as prohibiting the Buyer from pursuing any Partial Indirect Employee who does not accept an offer of employment by Buyer pursuant to the terms of Section 7.03 hereof other available remedies, whether at law or (ii) any Employee who has accepted an offer of employment by Buyer pursuant to the terms of Section 7.03 but who is no longer employed by Buyer at the xxxx Xxxxxx solicits in equity, for such employee for employment (except for Employees who resign employment with Buyer breach or whose employment is terminated for cause)threatened breach.
Appears in 1 contract
Samples: Asset Purchase Agreement (New York Health Care Inc)
Covenant Not to Compete; Non-Solicitation. Each Management Investor acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and accordingly agrees that, if such Management Investor is subject to an Employment Agreement, he will abide by the non-competition and non-solicitation covenants contained therein which are incorporated herein by reference with respect to such Management Investor. If no such covenants are contained in the Employment Agreement or if there is no such agreement, then the Management Investor agrees as follows:
(a) Until During the third anniversary term of employment by the Closing Date, neither Seller nor any Seller Entity shall, anywhere in the world, as an owner, consultant, joint venturer, member of a limited liability company, general partner, controlling shareholder of a privately-held corporation or shareholder to the extent of twenty-five percent (25%) or more of the outstanding shares of a publicly-held corporation, either directly or indirectly, engage or participate in or assist others in engaging or participating in the business of designing, manufacturing and/or marketing products that are directly competitive with the products of the Business existing or under development as of the Closing (“Competitive Products”); provided, however, that the foregoing shall not restrict or prohibit Seller Company or any Seller Entity from (i) engaging in any business in which Seller or any Seller Entity is engaged immediately following the Closing Date of its Affiliates and in businesses which represent normal growth and expansion therefrom or thereof, including engaging or participating in designing, marketing or selling services that relate to, or data storage or information management products that are used in, the Business, including through the Seller’s and the Seller Entities’ digital solutions and services and data storage and information management business units; (ii) manufacturing, marketing and selling products and systems that contain Competitive Products, provided that any such Competitive Product is incidental to the primary use or purpose of such products or systems; (iii) acquiring any corporation, partnership or other entity or business, in whole or in part, whether by asset acquisition, stock acquisition, statutory merger or otherwise, provided that, not more than twenty-five percent (25%) of the revenue of such entity or business being acquired by Seller or any Seller Entity for its immediately preceding completed fiscal year is derived from the sale of Competitive Products; provided, however, that this clause (iii) shall not be deemed to be violated if, within six (6) months after the consummation of such acquisition, Seller or the Seller Entity involved divests itself of or discontinues the business described above such that not more than twenty-five percent (25%) of the revenue of the acquired entity, as applicable, for its next full fiscal year are derived from Competitive Products; or (iv) being acquired by any corporation, partnership or other entity or business, in whole or in part, whether by asset acquisition, stock acquisition, statutory merger or otherwise (in which case this Section 6.07 shall not apply to or otherwise bind the corporation, partnership or other entity or business acquiring Seller or any Seller Entity in any such transaction).
(b) For a period of one two years following the date the Management Investor ceases to be employed by the Company (1) year after the Closing Date“Restricted Period”), Seller shall such Management Investor will not, without Buyer’s prior written consentwhether on his/her own behalf or on behalf of or in conjunction with any Person, directly or indirectly, solicit for employmentor assist in soliciting, hire as an employeein any manner, consultant in competition with the Company, the business of any client or contractor or otherwise engage any Direct Employee, 100% Indirect Employee or Partial Indirect Employee who has been offered employment by Buyer pursuant to Section 7.03 hereof; provided, however, that the foregoing shall not apply to prospective client:
(i) with whom the Management Investor had personal contact or dealings on behalf of the Company or its subsidiaries during the one year period preceding the Management Investor’s termination of employment;
(ii) with whom employees reporting to the Management Investor have had personal contact or dealings on behalf of the Company during the one year immediately preceding the Management Investor’s termination of employment; or
(iii) for whom the Management Investor had direct or indirect responsibility during the one year immediately preceding the Management Investor’s termination of employment.
(b) During the Restricted Period, the Management Investor will not directly or indirectly:
(i) engage in any Partial Indirect Employee who does not accept an offer business that competes with the business of employment by Buyer the Company or its Affiliates (including, without limitation, businesses which the Company or its Affiliates have specific plans to conduct in the future and as to which the Management Investor is aware of such planning) in any country in which the Company or its Affiliates generate at least $10 million in gross premiums written (or, pursuant to the terms Company’s business plan, expects to generate at least $10 million in gross premiums written in the calendar year following the year of Section 7.03 hereof or the Management Investor’s termination of employment) (a “Competitive Business”);
(ii) enter the employ of, or render any Employee services to, any Person (or any division or controlled or controlling Affiliate of any Person) who has accepted or which engages in a Competitive Business;
(iii) form, acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an offer individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or
(iv) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of employment by Buyer pursuant this Agreement) between the Company or any of its subsidiaries and customers, clients, suppliers partners, members or investors of the Company or its subsidiaries.
(c) Notwithstanding anything to the terms contrary in this Agreement, such Management Investor may, directly or indirectly own, solely as an investment, securities of Section 7.03 but any Person engaged in the business of the Company or its subsidiaries which are publicly traded on a national or regional stock exchange or on the over-the-counter market if such Management Investor (i) is not a Controlling person of, or a member of a group which Controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities (including stock options, whether or not exercisable) of such Person.
(d) During the Restricted Period, such Management Investor will not, whether on such Management Investor’s own behalf or on behalf of or in conjunction with any Person, directly or indirectly:
(i) solicit or encourage in any manner any employee of the Company or its subsidiaries to leave the employment of the Company or its subsidiaries or to apply for or accept employment with any other Person; or
(ii) hire any such employee who is no longer was employed by Buyer at the xxxx Xxxxxx solicits Company or its subsidiaries as of the date of the termination of such Management Investor’s employment or who left the employment of the Company or its subsidiaries coincident with, or within one year prior to or after, the termination of such Management Investor’s employment with the Company (other than any such employee for employment (except for Employees who resign whose employment with Buyer or whose employment the Company is terminated for by the Company without cause).
(e) During the Restricted Period, such Management Investor will not, directly or indirectly, encourage or solicit to cease to work with the Company or its subsidiaries any consultant then under contract with the Company or its subsidiaries.
(f) It is expressly understood and agreed that although such Management Investor and the Company consider the restrictions contained in this Section 9.15 to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Management Investor, the provisions of this Agreement will not be rendered void but will be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding will not affect the enforceability of any of the other restrictions contained herein.
Appears in 1 contract
Covenant Not to Compete; Non-Solicitation. (a) Until the third anniversary For a period of three (3) years following the Closing Date, neither the Seller nor any Seller Entity shall, anywhere in Parties shall not (and the world, as an owner, consultant, joint venturer, member of a limited liability company, general partner, controlling shareholder of a privately-held corporation or shareholder Parent will cause its Affiliates to the extent of twenty-five percent (25%not) or more of the outstanding shares of a publicly-held corporation, either directly or indirectly, engage (i) own, manage, operate, control, support, financially or otherwise (e.g., by providing consulting services to, or lending a service or trade xxxx to), or participate in the ownership, management, operation, control or assist others in engaging support of, any business that directly or participating in the business of designing, manufacturing and/or marketing products that are directly competitive indirectly competes with the products Business; provided that nothing contained in this Agreement or the Transaction Documents shall restrict the right of the Business existing Seller Parties or under their Affiliates to exploit, by way of sale, license or otherwise, the assets owned or licensed by the Seller Parties or their Affiliates or continuing to engage in related research and development as of the Closing (“Competitive Products”); provided, however, that the foregoing shall not restrict or prohibit Seller or any Seller Entity from (i) engaging in any business in which Seller or any Seller Entity is engaged immediately following the Closing Date and in businesses which represent normal growth and expansion therefrom or thereof, including engaging or participating in designing, marketing or selling services that relate toactivities, or data storage or information management products that are used in, the Business, including through the Seller’s and the Seller Entities’ digital solutions and services and data storage and information management business units; (ii) manufacturinginduce or seek to induce any customer, marketing and selling products and systems that contain Competitive Productssupplier, provided that agent, licensee or other Person with a prior or current business relationship with the Company to terminate or adversely change its business relationship with the Buyer or interfere in such relationship in any way other than as necessary to enforce the rights of the Seller Parties against any such Competitive Product is incidental to the primary use or purpose of such products or systems; (iii) acquiring any corporationcustomer, partnership supplier, agent, licensee or other entity or business, in whole or in part, whether by asset acquisition, stock acquisition, statutory merger or otherwise, provided that, not more than twenty-five percent (25%) of the revenue of such entity or business being acquired by Seller or any Seller Entity for its immediately preceding completed fiscal year is derived from the sale of Competitive Products; provided, however, that this clause (iii) shall not be deemed to be violated if, within six (6) months after the consummation of such acquisition, Seller or the Seller Entity involved divests itself of or discontinues the business described above such that not more than twenty-five percent (25%) of the revenue of the acquired entity, as applicable, for its next full fiscal year are derived from Competitive Products; or (iv) being acquired by any corporation, partnership or other entity or business, in whole or in part, whether by asset acquisition, stock acquisition, statutory merger or otherwise (in which case this Section 6.07 shall not apply to or otherwise bind the corporation, partnership or other entity or business acquiring Seller or any Seller Entity in any such transaction)Person.
(b) For a period of one twenty four (124) year after months following the Closing Date, none of the Seller Parties or their Affiliates on one hand nor the Buyer and its Affiliates on the other hand shall directly or indirectly encourage, induce, attempt to induce, solicit or attempt to solicit, any employee of the other to terminate his or her relationship with his or her employer; provided however that each party and its Affiliates may publish solicitations for employees in the general media in the ordinary course of its business. Notwithstanding the foregoing, for a period of two (2) years following the Closing Date, neither the Seller Parties nor Buyer shall, and shall cause their Affiliates to not, without Buyer’s prior written consent, directly or indirectly, solicit for employment, hire as an employee, consultant or contractor indirectly employ or otherwise engage in any Direct Employee, 100% Indirect Employee or Partial Indirect Employee who has been offered employment by Buyer pursuant to Section 7.03 hereof; provided, however, manner any of their respective employees that are listed on Schedule 5.5(b) attached hereto.
(c) Each party acknowledges that the foregoing remedy at Law for breach of the provisions of this Section 5.5 shall not apply be inadequate and that, in addition to (i) any Partial Indirect Employee who does not accept other remedy the party may have, it shall be entitled to an offer injunction restraining any breach or threatened breach, without any bond or other security being required and without the necessity of employment by Buyer pursuant showing actual damages. If any court construes the covenant in this Section 5.5, or any part of this Section 5.5, to be unenforceable in any respect, the court may reduce the duration or area to the terms of Section 7.03 hereof or (ii) any Employee who has accepted an offer of employment by Buyer pursuant to extent necessary so that the terms of Section 7.03 but who provision is no longer employed by Buyer at enforceable, and the xxxx Xxxxxx solicits such employee for employment (except for Employees who resign employment with Buyer or whose employment is terminated for cause)provision, as reduced, shall then be enforced.
Appears in 1 contract
Samples: Asset Purchase Agreement (Acceris Communications Inc)
Covenant Not to Compete; Non-Solicitation. (a) Until the third anniversary of the Closing Date, neither Seller nor any Seller Entity shall, anywhere in the world, as an owner, consultant, joint venturer, member of a limited liability company, general partner, controlling shareholder of a privately-held corporation or shareholder to the extent of twenty-five percent (25%) or more of the outstanding shares of a publicly-held corporation, either directly or indirectly, engage or participate in or assist others in engaging or participating in the business of designing, manufacturing and/or marketing products that are directly competitive with the products of the Business existing or under development as of the Closing (“Competitive Products”); provided, however, that the foregoing shall not restrict or prohibit Seller or any Seller Entity from (i) engaging in any business in which Seller or any Seller Entity is engaged immediately following Employee covenants and agrees that during the Closing Date term of this Agreement and in businesses which represent normal growth and expansion therefrom or thereof, including engaging or participating in designing, marketing or selling services that relate to, or data storage or information management products that are used in, the Business, including through the Seller’s and the Seller Entities’ digital solutions and services and data storage and information management business units; (ii) manufacturing, marketing and selling products and systems that contain Competitive Products, provided that any such Competitive Product is incidental to the primary use or purpose of such products or systems; (iii) acquiring any corporation, partnership or other entity or business, in whole or in part, whether by asset acquisition, stock acquisition, statutory merger or otherwise, provided that, not more than twenty-five percent (25%) of the revenue of such entity or business being acquired by Seller or any Seller Entity for its immediately preceding completed fiscal year is derived from the sale of Competitive Products; provided, however, that this clause (iii) shall not be deemed to be violated if, within six (6) months after the consummation of such acquisition, Seller or the Seller Entity involved divests itself of or discontinues the business described above such that not more than twenty-five percent (25%) of the revenue of the acquired entity, as applicable, for its next full fiscal year are derived from Competitive Products; or (iv) being acquired by any corporation, partnership or other entity or business, in whole or in part, whether by asset acquisition, stock acquisition, statutory merger or otherwise (in which case this Section 6.07 shall not apply to or otherwise bind the corporation, partnership or other entity or business acquiring Seller or any Seller Entity in any such transaction).
(b) For a period of one twelve (112) year after months thereafter (the Closing Date"Non-Compete Period"), Seller he shall not, without Buyer’s prior written consentin the United States or Canada and in any other countries in which the Company has done business within the preceding five (5) years (collectively, the "Territory"), directly or indirectly, solicit for employmenteither alone or in partnership or jointly or in conjunction with any person or persons, hire firm, association, syndicate, company or corporation as an principal, agent, employee, consultant director, shareholder or contractor in any other manner whatsoever (A) carry on or otherwise engage be engaged in any Direct Employeebusiness which is in competition with the business of the Company as existing during the term of this Agreement or at the time of termination thereof, 100as the case may be, except on behalf of the Company, or (B) except on behalf of the Company, solicit any business relating to non-qualified benefit plans of any kind funded with life insurance from, or sell any such product or service to, any of the Company's customers in the Territory or any other person, firm or corporation in the Territory to whom the Company, directly or indirectly through representatives, has made an offer, proposal or any solicitation to sell or has sold any life insurance within the preceding five (5) years. Nothing herein shall prohibit Employee from being an owner of not more than 1% Indirect of the outstanding stock of any class of a corporation which engages in such prohibited activity, so long as such corporation is publicly traded and listed on a national securities exchange or quoted on a national automated quotation system, provided that Employee or Partial Indirect Employee who has been offered employment by Buyer pursuant to Section 7.03 hereof; provided, however, that no active participation in the foregoing shall not apply to (i) any Partial Indirect Employee who does not accept an offer business of employment by Buyer pursuant to the terms of Section 7.03 hereof or such corporation.
(ii) Employee agrees that during the Non-Compete Period he will not directly or indirectly offer employment to or hire any Employee who has accepted an offer of employment by Buyer pursuant to the terms of Section 7.03 but person who is no longer then employed by Buyer at the xxxx Xxxxxx solicits such employee for employment Company or has been employed by the Company within the twelve (12) immediately preceding months, except for Employees who resign employment with Buyer or whose employment is terminated for cause)the prior written consent of the Company.
Appears in 1 contract
Covenant Not to Compete; Non-Solicitation. (a) Until During the period commencing on the Closing Date and continuing until the third anniversary of the Closing DateDate (the “Noncompetition Period”), neither Seller nor any Seller Entity shallPKI shall not (and shall cause each Noncompetition Party (as defined in this Section 8.3) not to), anywhere in the world, as an owner, consultant, joint venturer, member of a limited liability company, general partner, controlling shareholder of a privately-held corporation or shareholder to the extent of twenty-five percent (25%) or more of the outstanding shares of a publicly-held corporation, either directly or indirectly, own any interest in, manage, control, participate in, consult with, render services for, or in any manner engage in any activity or participate in or assist others in engaging or participating in the business of designing, manufacturing and/or marketing products that are directly competitive competing with the products of the Business existing or under development as of the Closing (a “Competitive ProductsBusiness”); provided, however, that the foregoing covenants shall not prohibit, or be interpreted as prohibiting, any Noncompetition Party from:
(i) continuing anywhere in the world in any type of business conducted by any Noncompetition Party on the Original Execution Date (including any extensions or additions to such business), which is not part of the Business;
(ii) entering into any relationship with a person or entity not owned, managed, operated or controlled by any Noncompetition Party for purposes unrelated to a Competitive Business (other than in a de minimis respect);
(iii) purchasing products and services from Competitive Businesses in the Ordinary Course of Business on arms-length terms;
(iv) making passive equity investments of less than two percent (2%) of the outstanding equity interests, or any interest exchangeable or convertible into or providing the right to receive an equity interest representing less than two percent (2%) of the outstanding equity interests, of any in publicly owned companies which conduct a Competitive Business, provided such investments do not confer control of any such Competitive Business upon any Noncompetition Party or enable such Noncompetition Party to otherwise directly or indirectly participate in the management or operations (including through the appointment of a manager, director or similar position) of such company;
(v) acquiring any person or entity which conducts a Competitive Business if either:
(A) in the calendar year prior to such acquisition, the consolidated revenues of such person or entity from its Competitive Business do not constitute more than 15% of the total consolidated revenues of such person or entity; or
(B) the applicable Noncompetition Party promptly commences and, within 12 months after such acquisition, completes the transfer of that portion of the business of such person or entity as constitutes a Competitive Business upon terms and conditions and at a price determined by the applicable Noncompetition Party in its sole discretion, or promptly (and in any event within 12 months after such acquisition) causes the cessation of that portion of the business of such person or entity as constitutes a Competitive Business;
(vi) engaging in the activities, services or businesses set forth on Schedule 8.3(a)(vi); or
(vii) performing its obligations under this Agreement and any Ancillary Agreement or otherwise taking actions in connection with the transactions contemplated hereby and thereby. Notwithstanding the foregoing, if at any time a third party consummates the acquisition (by way of merger, tender offer or otherwise) of more than 50% of the outstanding capital stock of PKI or all or substantially all of PKI’s consolidated assets, then the restrictions set forth in this paragraph shall terminate and cease to be of any further force or effect.
(b) Without limiting the applicability of the foregoing, PKI agrees that for three (3) years after the Closing Date, PKI shall not (and shall cause each Noncompetition Party not to) hire or engage or recruit, solicit for employment or otherwise attempt to employ any person who was a Business Employee on the Closing Date; provided, however, that the foregoing shall not prohibit PKI or any Noncompetition Party from (A) placing general advertisements for employees not directed at the Business or the Business Employees and hiring or engaging any person in response to any such general advertisement, (B) engaging any recruiting firm or similar organization to identify or solicit persons for employment on its behalf, or soliciting, hiring or engaging any person who is identified by any such recruiting firm or organization, as long as such recruiting firm or organization is not instructed to target the Business or any Business Employee, (C) soliciting or hiring any such Business Employee whose employment with Buyer or an Acquired Company, as applicable, has been terminated for at least six months, (D) rehiring any Business Employee that is not a New Buyer Employee if such rehiring is required by applicable Law or (E) continuing to employ any Delayed Transfer Employee following the Closing Date in accordance with the terms of this Agreement. Buyer agrees that for three (3) years after the Closing Date, Buyer shall not (and shall cause its Affiliates (including the Acquired Companies) not to) hire or engage or recruit, solicit for employment or otherwise attempt to employ any person set forth on Schedule 8.3(b); provided, however, that the foregoing shall not restrict or prohibit Seller or any Seller Entity Buyer from (iX) placing general advertisements for employees not directed at such employees and hiring or engaging any person in response to any such general advertisement, (Y) engaging in any business in which Seller recruiting firm or any Seller Entity is engaged immediately following the Closing Date and in businesses which represent normal growth and expansion therefrom similar organization to identify or thereof, including engaging or participating in designing, marketing or selling services that relate tosolicit persons for employment on its behalf, or data storage soliciting, hiring or information management products that are used in, the Business, including through the Seller’s and the Seller Entities’ digital solutions and services and data storage and information management business units; (ii) manufacturing, marketing and selling products and systems that contain Competitive Products, provided that engaging any person who is identified by any such Competitive Product is incidental to the primary use recruiting firm or purpose of such products or systems; (iii) acquiring any corporation, partnership or other entity or business, in whole or in part, whether by asset acquisition, stock acquisition, statutory merger or otherwise, provided that, not more than twenty-five percent (25%) of the revenue of such entity or business being acquired by Seller or any Seller Entity for its immediately preceding completed fiscal year is derived from the sale of Competitive Products; provided, however, that this clause (iii) shall not be deemed to be violated if, within six (6) months after the consummation of such acquisition, Seller or the Seller Entity involved divests itself of or discontinues the business described above such that not more than twenty-five percent (25%) of the revenue of the acquired entityorganization, as applicable, for its next full fiscal year are derived from Competitive Products; long as such recruiting firm or organization is not instructed to target such employees or independent contractors or (ivZ) being acquired by any corporation, partnership soliciting or other entity or business, in whole or in part, whether by asset acquisition, stock acquisition, statutory merger or otherwise (in which case this Section 6.07 shall not apply to or otherwise bind the corporation, partnership or other entity or business acquiring Seller or any Seller Entity in hiring any such transaction).
(b) For a period of one (1) year after the Closing Date, Seller shall not, without Buyer’s prior written consent, directly employee whose employment with PKI or indirectly, solicit for employment, hire as an employee, consultant or contractor or otherwise engage any Direct Employee, 100% Indirect Employee or Partial Indirect Employee who its subsidiaries has been offered employment by Buyer pursuant to Section 7.03 hereof; provided, however, that the foregoing shall not apply to (i) any Partial Indirect Employee who does not accept an offer of employment by Buyer pursuant to the terms of Section 7.03 hereof or (ii) any Employee who has accepted an offer of employment by Buyer pursuant to the terms of Section 7.03 but who is no longer employed by Buyer at the xxxx Xxxxxx solicits such employee for employment (except for Employees who resign employment with Buyer or whose employment is terminated for cause)at least six months.
Appears in 1 contract
Samples: Master Purchase and Sale Agreement (Perkinelmer Inc)
