Covenant Not to Compete or Solicit Business. (a) In furtherance of the sale of the Purchased Assets and the Business to Buyer hereunder by virtue of the transactions contemplated hereby and more effectively to protect the value and goodwill of the Purchased Assets and the Business so sold, Seller covenants and agrees that, for a period ending on the third anniversary of the Closing Date, neither Seller nor any of its Subsidiaries will: (i) market to any health system customer any Software that is competitive with the Software included in the Business, except as contemplated by the Reseller Agreement Amendment; (ii) solicit, induce or attempt to persuade any agent, supplier or customer of the Business to terminate or reduce or limit such agency or business relationship; or (iii) hire any employee on Schedule 8.1(A)(iii) or solicit, induce or attempt to persuade or assist any employee of the Business to leave the employment of Buyer or any of its Affiliates; provided, however, that the foregoing restriction shall not prohibit a general solicitation through the media that is not targeted at employees of the Business; Seller also covenants and agrees that from and after the Closing Date, it will not, and will not permit any of its Affiliates to, divulge or make use of any trade secrets or other confidential information of the Business other than to disclose such secrets and information to Buyer or its Affiliates. (b) If Seller or any Affiliate of Seller violates any of its obligations under this Section 8.1, Buyer may proceed against it in law or in equity for such damages or other relief as a court may deem appropriate. Seller acknowledges that a violation of this Section 8.1 may cause Buyer irreparable harm which may not be adequately compensated for by money damages. Seller therefore agrees that in the event of any actual or threatened violation of this Section 8.1, Buyer shall be entitled, in addition to other remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against Seller or such Affiliate of Seller to prevent any violations of this Section 8.1, without the necessity of posting a bond. The prevailing party in any action commenced under this Section 8.1 shall also be entitled to receive reasonable attorneys’ fees and court costs. It is the intent and understanding of each party hereto that if, in any action before any court or agency legally empowered to enforce this Section 8.1, any term, restriction, covenant or promise in this Section 8.1 is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency.
Appears in 3 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Allscripts Healthcare Solutions, Inc.), Asset Purchase Agreement (NantHealth, Inc.)
Covenant Not to Compete or Solicit Business. (a) In furtherance of the sale of the Purchased Assets and the Business to Buyer hereunder by virtue of the transactions contemplated hereby hereby, each of Parent and more effectively to protect the value and goodwill of the Purchased Assets and the Business so sold, Seller covenants and agrees that, for a period ending on the third tenth (10th) anniversary of the Closing Date, neither Parent or Seller nor any of its Subsidiaries their respective Affiliates will:
(i) market to any health system customer any Software that is directly or indirectly (whether as principal, agent, independent contractor, partner or otherwise) own, manage, operate, control, participate in, perform services for, sell materials to, or otherwise carry on, a business competitive with the Software included Business anywhere in the Business, except as contemplated United States (it being understood by the Reseller Agreement Amendment;parties hereto that the Business is not limited to any particular region of the United States and that the Business may be engaged in effectively from any location in the United States); or
(ii) solicit, induce or attempt to persuade any agent, supplier or customer of the Business Buyer Employee to terminate such employment, or reduce or limit such agency or any customer to terminate its business relationship; or
(iii) hire any employee on Schedule 8.1(A)(iii) or solicit, induce or attempt to persuade or assist any employee of the Business to leave the employment of with Buyer or any of its Affiliates; provided, however, that nothing set forth in this Section 8.1 shall prohibit Parent, Seller or their Affiliates from: (x) engaging in the foregoing restriction business of Seller’s fixed income middle markets group, so long as Seller and its Affiliates (A) with respect to the trading of municipal bonds, shall engage only in trades primarily with broker-dealers for a period of one (1) year following the Closing Date and (B) shall not prohibit hold an inventory of municipal bonds in excess of $50,000,000 at any time for the first year following the Closing Date or $60,000,000 for the second year following the Closing Date; (y) owning not in excess of 5% in the aggregate of any class of capital stock of any corporation if such stock is publicly traded and listed on any national or regional stock exchange; or (z) performing, or having performed on their behalf, a general solicitation for employees not specifically focused at any of the Transferred Employees through the media that is not targeted at employees use of the Business; media, advertisement, electronic job boards or other general public solicitations. Each of Parent and Seller also covenants and agrees that from and after the Closing Date, Date it will not, and will not permit any of its Affiliates to, divulge or make use of any trade secrets or other confidential information of the Business other than to disclose such secrets and information to Buyer or its Affiliates.
(b) If Parent, Seller or any Affiliate of Seller thereof violates any of its obligations under this Section 8.1, Buyer may proceed against it in law or in equity for such damages or other relief as a court may deem appropriate. Parent and Seller acknowledges acknowledge that a violation of this Section 8.1 may cause Buyer irreparable harm which may not be adequately compensated for by money damages. Parent and Seller therefore agrees agree that in the event of any actual or threatened violation of this Section 8.1, Buyer shall be entitled, in addition to other remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against Parent, Seller or such Affiliate of Seller thereof to prevent any violations of this Section 8.1, without the necessity of posting a bond. The prevailing party in any action commenced under this Section 8.1 shall also be entitled to receive reasonable attorneys’ fees and court costs. It is the intent and understanding of each party hereto that if, in any action before any court or agency legally empowered to enforce this Section 8.1, any term, restriction, covenant or promise in this Section 8.1 is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency.
(c) The parties hereto agree that this Section 8.1 shall not be binding upon the successors and assigns of Parent or Seller in the event of a Company Sale involving Parent or Seller, respectively; provided, that with respect to any Company Sale within three (3) years following the Closing Date in which the successor or the acquiring Person is not engaged in the business of underwriting, advisory services, sales and trading of U.S. municipal bonds, and other similar instruments and securities, at the time such Company Sale is entered into, such successor or acquiring Person shall not engage in such business until the third anniversary of the Closing Date.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Gleacher & Company, Inc.), Asset Purchase Agreement (First Albany Companies Inc)
Covenant Not to Compete or Solicit Business. (a) In furtherance of the sale of the Purchased Assets and the Business to Buyer hereunder by virtue of the transactions contemplated hereby and more effectively to protect the value and goodwill of the Purchased Assets and the Business so sold, Seller covenants and agrees that, for a period ending on the third anniversary of date falling 36 months after the Closing Date, neither Seller nor any of its Subsidiaries Affiliates will:
(ia) market to any health system customer any Software that is competitive with the Software included directly or indirectly (whether as principal, agent, independent contractor, partner, shareholder or otherwise) own, manage, operate, control, participate in, or otherwise carry on, or set up a semiconductor assembly and testing facility anywhere in the Business, except as contemplated by the Reseller Agreement Amendment;Thailand; or
(iib) solicit, induce or attempt to persuade any agent, employee or supplier of goods or customer services of the Business Buyer to terminate such employment or reduce or limit such agency or business relationship; or
(iii) hire relationship in order to enter into any employee such relationship on Schedule 8.1(A)(iii) or solicit, induce or attempt to persuade or assist behalf of any employee of other business organization in competition with the Business to leave the employment of Buyer or any of its AffiliatesBusiness; provided, however, that nothing set forth in this Section 8.1 shall prohibit Seller or its Affiliates (x) from owning not in excess of 5% in the foregoing restriction shall not prohibit a general solicitation through the media that aggregate of any class of capital stock of any corporation if such stock is not targeted at employees of the Business; publicly traded and listed on any national or regional stock exchange. In addition, Seller also covenants and agrees that from and after the Closing Date, neither it will not, and will not permit nor any of its Affiliates to, will divulge or make use of any trade secrets or other confidential information of the Business other than to disclose such secrets and information to Buyer or its Affiliates.
(b) If Seller or any Affiliate of Seller violates any of its obligations under this Section 8.1, Buyer may proceed against it in law or in equity for such damages or other relief as a court may deem appropriate. Seller acknowledges that a violation of this Section 8.1 may cause Buyer irreparable harm which may not be adequately compensated for by money damages. Seller therefore agrees that in the event of any actual or threatened violation of this Section 8.1, Buyer shall be entitled, in addition to other equitable remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against Seller or such Affiliate of Seller to prevent any violations of this Section 8.1, without the necessity of posting a bond. The prevailing party in any action commenced under this Section 8.1 shall also be entitled to receive reasonable attorneys’ fees and court costs. It is the intent and understanding of each party hereto that if, in any action before any court or agency legally empowered to enforce this Section 8.1, any term, restriction, covenant or promise in this Section 8.1 is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency.
Appears in 1 contract
Samples: Asset Purchase Agreement (Lsi Corp)
Covenant Not to Compete or Solicit Business. (a) In furtherance of the sale of the Purchased Assets and the Business to Buyer hereunder by virtue of the transactions contemplated hereby and more effectively to protect the value and goodwill of the Purchased Assets and the Business so sold, Seller covenants and agrees that, for a period ending on the third anniversary of the Closing Date, neither Seller nor any of its Subsidiaries Affiliates will:
(i) market directly or indirectly (whether as principal, agent, independent contractor, partner or otherwise) own, manage, operate, control, participate in, perform services for, sell materials to, or otherwise carry on, a business similar to any health system customer any Software that is or competitive with the Software included Business as conducted at the Closing Date (including developing, marketing, licensing, selling or distributing any extended release cyclobenzaprine product) anywhere in the Business, except as contemplated Territory (it being understood by the Reseller Agreement Amendment;parties hereto that the Business is not limited to any particular region of the Territory and that the Business may be engaged in effectively from any location in the Territory); or
(ii) solicit, induce or attempt to persuade any distributor, agent, supplier or customer of the Business to terminate or reduce or limit such distributor, agency or business relationship; or
(iii) hire relationship in order to enter into any employee such relationship on Schedule 8.1(A)(iii) or solicit, induce or attempt to persuade or assist behalf of any employee of other business organization in competition with the Business to leave the employment of Buyer or any of its AffiliatesBusiness; provided, however, that nothing set forth in this Section 8.14 shall prohibit Seller or its Affiliates from owning not in excess of 5% in the foregoing restriction shall not prohibit a general solicitation through the media that aggregate of any class of capital stock of any corporation if such stock is not targeted at employees of the Business; publicly traded and listed on any national or regional stock exchange. Seller also covenants and agrees that from and after the Closing Date, Date it will not, and nor will not it permit any of its Affiliates to, divulge or make use of any trade secrets or other confidential information of the Business other than to disclose such secrets and information to Buyer or its Affiliates.
(b) If Seller or any Affiliate of Seller violates any of its obligations under this Section 8.18.14, Buyer may proceed against it in law or in equity for such damages or other relief as a court may deem appropriate. Seller acknowledges that a violation of this Section 8.1 8.14 may cause Buyer irreparable harm which may not be adequately compensated for by money damages. Seller therefore agrees that in the event of any actual or threatened violation of this Section 8.18.14, Buyer shall be entitled, in addition to other remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against Seller or such Affiliate of Seller to prevent any violations of this Section 8.18.14, without the necessity of posting a bond. The prevailing party in any action commenced under this Section 8.1 8.14 shall also be entitled to receive reasonable attorneys’ fees and court costs. It is the intent and understanding of each party hereto that if, in any action before any court or agency legally empowered to enforce this Section 8.18.14, any term, restriction, covenant or promise in this Section 8.1 8.14 is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency. **Portions of the Exhibit have been omitted and have been filed separately pursuant to an application for confidential treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.
Appears in 1 contract
Covenant Not to Compete or Solicit Business. (a) In furtherance of the sale of the Purchased Assets and the Business to Buyer transactions hereunder by virtue of the transactions contemplated hereby and more effectively to protect the value and goodwill of the Purchased Assets assets and business of the Business so soldCompany to be acquired hereby, Seller each of the Stockholders covenants and agrees that, except strictly in connection with the performance of his or her duties as an employee or agent of the Company or an Affiliate of CLARCOR, for a period beginning on the Closing Date and ending on the third fifth anniversary of the Closing Date, neither Seller nor any of its Subsidiaries willhe or she will not:
(ia) market to directly or indirectly (whether as principal, agent, independent contractor, partner or otherwise) own, manage, operate, control, participate in, perform services for, or otherwise carry on, anywhere in the United States of America any health system customer any Software that is competitive business which competes, directly or indirectly, with the Software included in the Business, except as contemplated by the Reseller Agreement Amendment;; or
(iib) solicit, induce or attempt to persuade any employee, agent, customer, supplier or customer other business relation of the Business Company to terminate or reduce or limit such employment, agency or business relationship; or
(iii) hire relationship in order to enter into any employee such relationship on Schedule 8.1(A)(iii) or solicit, induce or attempt to persuade or assist behalf of any employee of other business organization in competition with the Business to leave the employment of Buyer or any of its AffiliatesCompany; provided, however, that nothing set forth in this Section 9.1 shall prohibit the foregoing restriction shall Stockholders from owning not prohibit a general solicitation through in excess of 5% in the media that aggregate of any class of capital stock of any corporation if such stock is not targeted at employees publicly traded and listed on any national or regional stock exchange or reported on the National Association of Securities Dealers Automated Quotations (NASDAQ) System. In addition, the Business; Seller also covenants Stockholders covenant and agrees that from and after agree that, following the Closing DateClosing, it will not, and will not permit neither they nor any of its their respective Affiliates to, will divulge or make use of any trade secrets or other confidential information of the Business or the Company other than to disclose such secrets and information to CLARCOR, Buyer or its their Affiliates.
(b) If Seller . Notwithstanding the foregoing, in the event that, following the Closing, any Stockholder is requested or any Affiliate of Seller violates any of its obligations under this Section 8.1required by oral questions, Buyer may proceed against it in law interrogatories, requests for information or in equity for such damages documents, subpoena, civil investigative demand or other relief as similar process or by a court order applicable to such Stockholder or by a governmental agency or body to disclose any such trade secrets or confidential information, such Stockholder shall give CLARCOR at least five (5) Business Days prior notice of the name of the party requesting such information and what information such party is requesting to be disclosed to enable CLARCOR to take such action as CLARCOR may deem appropriatechoose to prevent such disclosure. Seller acknowledges After the expiration of such five (5) Business Days, the Stockholder may furnish that a portion (and only that portion) of the information that the Stockholder is legally compelled to disclose and such Stockholder will exercise reasonable efforts, if requested by CLARCOR, and at CLARCOR’s expense, to obtain reliable assurance that confidential treatment will be accorded any information so furnished. Without limiting the right of CLARCOR and Buyer to pursue all other legal and equitable rights available to it for violation of this Section 8.1 may cause Buyer irreparable harm which may 9.1 by the Stockholders, it is agreed that other remedies cannot be adequately compensated for by money damages. Seller therefore agrees that in the event of any actual or threatened violation of this Section 8.1fully compensate CLARCOR, Buyer or the Company for such a violation and that CLARCOR, Buyer and the Company shall be entitled, in addition to other remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against Seller or such Affiliate of Seller to prevent any violations of this Section 8.1, without the necessity of posting a bond. The prevailing party in any action commenced under this Section 8.1 shall also each be entitled to receive reasonable attorneys’ fees and court costsinjunctive relief to prevent violation or continuing violation thereof, without posting any bond or other undertaking. It is the intent and understanding of each party hereto that if, in any action before any court or agency legally empowered to enforce this Section 8.19.1, any term, restriction, covenant or promise in this Section 8.1 9.1 is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency.
Appears in 1 contract
Covenant Not to Compete or Solicit Business. (a) In furtherance of Upon the sale of the Purchased Assets and the Business to Buyer hereunder by virtue consummation of the transactions contemplated hereby and more effectively to protect the value and goodwill of the Purchased Assets and the Business so soldhereby, Seller covenants and agrees with Purchaser that, for a period ending on the third fifth anniversary of the Closing Date, neither Seller nor any except with respect to trade secrets described in Subsection 4.8(b) for which the period will be a period ending on the eighth anniversary of its Subsidiaries will:
(i) market to any health system customer any Software that is competitive with the Software included in the Business, except as contemplated by the Reseller Agreement Amendment;
(ii) solicit, induce or attempt to persuade any agent, supplier or customer of the Business to terminate or reduce or limit such agency or business relationship; or
(iii) hire any employee on Schedule 8.1(A)(iii) or solicit, induce or attempt to persuade or assist any employee of the Business to leave the employment of Buyer or any of its Affiliates; provided, however, that the foregoing restriction shall not prohibit a general solicitation through the media that is not targeted at employees of the Business; Seller also covenants and agrees that from and after the Closing Date, it Seller will not:
(a) engage, anywhere in the United States, its territories, Canada, Mexico and will not permit Europe, in any activities involving the provision of its Affiliates toelectronic security services, whether as an employer, partner, owner of more than 2% of the stock of a corporation or otherwise, which activities are in competition with the Division as it exists on the Closing Date;
(b) divulge or make use of any trade secrets of the Division;
(1) induce or attempt to induce any customer to cease doing business or to decrease its business with Purchaser, (2) induce or attempt to induce any employee to leave their employ with Purchaser or in any way interfere with the relationship between Purchaser or its affiliates and any of their employees, or (3) induce or attempt to induce any supplier, agent, licensee, licensor, franchisee, or other confidential information business relation of the Business other than to disclose such secrets and information to Buyer Purchaser or its Affiliates.
affiliates to cease doing business with them or in any way interfere with the relationship between Purchaser or its affiliates and any customer or business relation. Purchaser agrees that it will not assert a claim for injunctive relief (bas opposed to money damages) If Seller or any Affiliate of Seller violates any of its obligations under this Section 8.14.8 unless the Division has not, Buyer may proceed against within 10 days after Seller has received written notice from Purchaser of such breach of covenant, remedied the events or circumstances constituting such breach to the reasonable satisfaction of Purchaser, if such event or circumstance is capable of being cured. Without limiting the right of Purchaser to pursue all other legal and equitable rights available to them for violation of Section 4.8 it in law or in equity is agreed that other remedies cannot fully compensate Purchaser for such damages or other relief as a court may deem appropriate. Seller acknowledges that a violation of this Section 8.1 may cause Buyer irreparable harm which may not be adequately compensated for by money damages. Seller therefore agrees and that in the event of any actual or threatened violation of this Section 8.1, Buyer Purchaser shall be entitled, in addition to other remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against Seller or such Affiliate of Seller to prevent any violations of this Section 8.1, without the necessity of posting a bond. The prevailing party in any action commenced under this Section 8.1 shall also be entitled to receive reasonable attorneys’ fees and court costsinjunctive relief to prevent violation or continuing violation thereof. It is the intent and understanding of each party hereto that if, in any action before any court or agency legally empowered to enforce this Section 8.14.8, any term, restriction, covenant or promise in this Section 8.1 4.8 is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency.
Appears in 1 contract
Covenant Not to Compete or Solicit Business. (a) In furtherance of the sale of the Purchased Assets and the Business to Buyer hereunder by virtue of the transactions contemplated hereby and more effectively to protect the value and goodwill of the Purchased Assets and the Business so sold, Seller covenants and agrees that, for a period ending on the third fifth anniversary of the Closing Date, neither Seller nor Hastings Canada or any of its Subsidiaries their respective Affiliates will:
(i) market directly or indirectly (whether as principal, agent, independent contractor, partner or otherwise) own, manage, operate, control, participate in, perform services for, or otherwise carry on, a business similar to any health system customer any Software that is or competitive with the Software included Business anywhere in the Business, except as contemplated United States of America or Canada (it being understood by the Reseller Agreement Amendment;parties hereto that the Business is not limited to any particular region of the United States of America or Canada and that such business may be engaged in effectively from any location in the United States of America or Canada); or
(ii) solicit, induce or attempt to persuade any agentemployee, supplier agent or customer of the Business to terminate or reduce or limit such employment, agency or business relationship; or
(iii) hire relationship in order to enter into any employee such relationship on Schedule 8.1(A)(iii) or solicit, induce or attempt to persuade or assist behalf of any employee of the Business to leave the employment of Buyer or any of its Affiliates; provided, however, that the foregoing restriction shall not prohibit a general solicitation through the media that is not targeted at employees of other business organization in competition with the Business; PROVIDED, HOWEVER, that nothing set forth in this SECTION 7.1 shall prohibit Seller also or its Affiliates from (x) owning not in excess of 5% in the aggregate of any class of capital stock of any corporation if such stock is publicly traded and listed on any national or regional stock exchange or on the NASDAQ Stock Market or (y) from making occasional sales of filter products manufactured by unrelated third parties and acquired by Seller in a "stock-lift" or similar program. In addition, each of Seller and Hastings Canada covenants and agrees that from and after the Closing Date, neither it will not, and will not permit nor any of its Affiliates to, will divulge or make use of any trade secrets or other confidential information of the Business other than to disclose such secrets and information to Buyer or its Affiliates.
(b) If Seller . In the event Seller, Hastings Canada or any Affiliate of Seller or Hastings Canada violates any of its obligations under this Section 8.1SECTION 7.1, Buyer may proceed against it in law or in equity for such damages or other relief as a court may deem appropriate. Seller acknowledges and Hastings Canada acknowledge that a violation of this Section 8.1 SECTION 7.1 may cause Buyer irreparable harm which may not be adequately compensated for by money damages. Seller and Hastings Canada therefore agrees agree that in the event of any actual or threatened violation of this Section 8.1SECTION 7.1, Buyer shall be entitled, in addition to other remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against Seller Seller, Hastings Canada or such Affiliate of Seller to prevent any violations of this Section 8.1SECTION 7.1, without the necessity of posting a bond. The prevailing party in any action commenced under this Section 8.1 shall also be entitled to receive reasonable attorneys’ fees and court costs. It is the intent and understanding of each party hereto that if, in any action before any court or agency legally empowered to enforce this Section 8.1, any term, restriction, covenant or promise in this Section 8.1 is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency.this
Appears in 1 contract
Samples: Asset Purchase Agreement (Hastings Manufacturing Co)
Covenant Not to Compete or Solicit Business. (a) In furtherance ------------------------------------------- of the sale of the Purchased Assets and Shares to the Business to Buyer hereunder by virtue of the transactions contemplated hereby and more effectively to protect the value and goodwill of the Purchased Assets assets and business of the Business so soldCompany, Seller covenants the Shareholders covenant and agrees agree that, for a period ending on the third anniversary of the Closing Date, neither Seller nor none of the Trust, any Shareholder, and RPM Shareholder or any current or future controlled Affiliate of its Subsidiaries the Trust, any Shareholder or any RPM Shareholder (other than the Company) (collectively, the "Restricted Parties") will:: ------------------
(i) market to any health system customer any Software that is directly or indirectly (whether as principal, agent, independent contractor, partner or otherwise) own, manage, operate, control, participate in, perform services for, or otherwise carry on, a business competitive with the Software included business conducted by the Company on the date hereof anywhere in the Business, except as contemplated Noncompetition Territory (it being understood by the Reseller Agreement Amendment;parties hereto that the business prohibited activities are not limited to any particular region because such business has been conducted by the Company in the Noncompetition Territory and the prohibited activities may be engaged in effectively from any location in the Noncompetition Territory); or
(ii) solicit, induce or attempt to persuade any agent, supplier or customer of the Business Company to terminate or reduce or limit such agency or business relationshiprelationship in order to enter into any such relationship on behalf of any other business organization in competition with the business conducted by the Company on the date hereof; or
(iii) solicit for hire any Person who is an employee of the Company on Schedule 8.1(A)(iii) the date hereof or solicit, at any time hereafter or induce or attempt to persuade or assist any employee of the Business such Person to leave the employment of Buyer or any of its Affiliatesterminate such Person's employment; provided, however, that the foregoing restriction nothing set forth in this Section 7.1 shall not prohibit a general solicitation through the media that is not targeted at employees any -------- ------- ----------- of the Business; Seller also covenants Restricted Parties from owning (x) non-voting securities or (y) not in excess of 5% in the aggregate of the voting power of the voting securities of the issuer if the securities owned are registered under the Securities Exchange Act of 1934, as amended.
(b) In addition, the Shareholders covenant and agrees agree that from and after none of the Closing Date, it Restricted Parties will not, and will not permit any of its Affiliates to, divulge or make use of any trade secrets or other confidential information of the Business Company other than to disclose such secrets and information (i) to the Buyer or its Affiliates, (ii) after it has become available to the public other than as a result of disclosure by a Restricted Party or (iii) if required to be disclosed under applicable law or judicial process, but only to the extent it must be disclosed.
(bc) If Seller or In the event any Affiliate of Seller the Restricted Parties violates any of its obligations under this Section 8.17.1, the Buyer or the Company may proceed against ----------- it in law or in equity for such damages or other relief as a court may deem appropriate. Seller acknowledges The Shareholders acknowledge that a violation of this Section 8.1 7.1 ----------- may cause the Buyer or the Company irreparable harm which may not be adequately compensated for by money damages. Seller The Shareholders therefore agrees that in the event of any actual or threatened violation of this Section 8.17.1, the Buyer or ----------- the Company shall be entitled, in addition to other remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against Seller or such Affiliate any of Seller the Restricted Parties to prevent any violations of this Section 8.1------- 7.1, without the necessity of posting a bond. The prevailing party in any --- action commenced under this Section 8.1 7.1 shall also be entitled to receive ----------- reasonable attorneys’ ' fees and court costs. .
(d) It is the intent and understanding of each party hereto that if, in any action before any court or agency legally empowered to enforce this Section 8.17.1, any term, restriction, covenant or promise in this Section 8.1 7.1 is ----------- ----------- found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency.
Appears in 1 contract
Covenant Not to Compete or Solicit Business. (a) In furtherance of the sale of the Purchased Assets and the Business to Buyer hereunder by virtue of the transactions contemplated hereby and to more effectively to protect the value and goodwill of the Purchased Assets and the Business so sold, Seller covenants and agrees that, for a period beginning on the Closing Date and ending on the third fifth (5th) anniversary of the Closing Date, neither Seller nor any of its Subsidiaries Affiliates will:
(i) market to any health system customer any Software that is directly or indirectly (whether as principal, agent, independent contractor, partner or otherwise) own, manage, operate, control, participate in, perform switching or pre-adjudication and post-adjudication prescription claims editing services for, or otherwise carry on, a business competitive with the Software included Business anywhere in the Business, except as contemplated by the Reseller Agreement AmendmentUnited States of America;
(ii) induce or attempt to persuade any employee or agent of Buyer to terminate such employment or agency relationship in order to enter into any such relationship on behalf of any other business organization in competition with the Business; or
(iii) for itself or on behalf of any other Person or entity, knowingly and deliberately solicit, divert away, take away or attempt to solicit or take away any customer under an Assigned Contract or for whom Seller provided services in the Business at any time during the twelve-month period prior to the Closing Date, for purposes of providing or selling any services competitive with the Business.
(b) Buyer acknowledges that this Section 8.3 in no way constrains Seller from performing under the Transition Services Agreement or conducting any of its Excluded Businesses during the term of this covenant. Buyer further acknowledges that this Section 8.3 in no way constrains Seller from (i) entering into ordinary course arrangements with Persons engaged in the Business to obtain data from such Persons, (ii) impartially discussing in the ordinary course of Seller’s business with its owners, managers, vendors, service/data providers or any other third Person (in each case, if applicable, after reasonable compliance by Seller with Section 2.2 of the Member Services Agreement) means by which such Persons could transmit data to Seller and impartially advising such Persons on possible courses of action or (iii) discussing with its managers, in their capacity as managers, Seller’s business and operations, including the performance of Buyer under agreements between Buyer and Seller.
(c) As an inducement to Seller to enter into this Agreement and to consummate the transactions contemplated hereby, Buyer covenants and agrees that, for a period beginning on the Closing Date and ending on the third (3rd) anniversary of the Closing Date, neither Buyer nor any of its Affiliates will, except as provided for in Schedule 7.5, induce or attempt to persuade any agent, supplier employee or customer agent of the Business Seller to terminate such employment or reduce or limit agency in order to enter into any such agency or business relationship; or
(iii) hire any employee on Schedule 8.1(A)(iii) or solicit, induce or attempt to persuade or assist any employee of the Business to leave the employment of Buyer or any of its Affiliates; provided, however, that the foregoing restriction shall not prohibit a general solicitation through the media that is not targeted at employees of the Business; Seller also covenants and agrees that from and after the Closing Date, it will not, and will not permit any of its Affiliates to, divulge or make use of any trade secrets or other confidential information of the Business other than to disclose such secrets and information to Buyer or its Affiliatesrelationship with Buyer.
(bd) If Notwithstanding anything contained herein to the contrary, in the event Seller terminates the Member Services Agreement pursuant to its right to terminate set forth in Section 2.10(b) thereof or in accordance with Section 7.2 thereof, the parties agree that the covenants contained in Sections 8.3(a)(i) and 8.3(a)(iii) hereof shall immediately thereupon terminate and be of no further force or effect.
(e) Notwithstanding anything to the contrary in this Section 8.3, nothing set forth in this Section 8.3 shall prohibit any party or its Affiliates from owning not in excess of five percent (5%) in the aggregate of any class of capital stock of any corporation if such stock is publicly traded and listed on any national or regional stock exchange or on the NASDAQ market system. In the event a party or any Affiliate of Seller such party violates any of its obligations under this Section 8.18.3, Buyer the other party may proceed against it in law or in equity for such damages or other relief as a court may deem appropriate. Seller acknowledges The parties acknowledge that a violation of this Section 8.1 8.3 may cause Buyer the other party irreparable harm which may not be adequately compensated for by money damages. Seller The parties therefore agrees agree that in the event of any actual or threatened violation of this Section 8.18.3, Buyer the other party shall be entitled, in addition to other remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against Seller the violating party or such an Affiliate of Seller such party to prevent any violations of this Section 8.18.3, without the necessity of posting a bond. The prevailing party in any action commenced under this Section 8.1 8.3 shall also be entitled to receive reasonable attorneys’ fees and court costs. It is the intent and understanding of each party hereto that if, in any action before any court or agency legally empowered to enforce this Section 8.18.3, any term, restriction, covenant or promise in this Section 8.1 8.3 is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency.
Appears in 1 contract
Covenant Not to Compete or Solicit Business. (a) In furtherance of the sale of the Purchased Assets to Buyer and the Business contribution of the Contributed Assets to Buyer TE/TOUSA, LLC hereunder by virtue of the transactions contemplated hereby and to more effectively to protect the value and goodwill of the Purchased Assets, the Contributed Assets and the Business so soldbeing sold to Buyer, Seller covenants Sellers together with Fxxxxxx covenant and agrees agree that, for a period ending on the third anniversary of the Closing Date, neither Seller none of them, nor any of its Subsidiaries their Affiliates will:, anywhere in the counties specified in Schedule 8.1(B):
(i) market directly or indirectly (whether as principal, agent, independent contractor, partner or otherwise) own, manage, operate, control, participate in, perform services for, sell materials to, or otherwise carry on, a business similar to any health system customer any Software that is or competitive with the Software included Business as conducted by Sellers as of Closing, including the sale or production of new, single-family, detached homes but excluding mixed-use projects (being defined as projects which are primarily commercial but also include residential elements as an ancillary use); provided that such prohibition shall not apply to any Lot listed on Schedule 8.1(C) hereto (including the thirty-two (32) Lots in Coral Lakes (the Business“Coral Lakes Lots”) identified on such Schedule) or the Right of First Offer Agreement, except as contemplated which Lot is not acquired by Buyer by reason of non-exercise of the Reseller Agreement Amendment;option or right of first offer relating to such Lot for any reason other than the breach of any Seller or its Affiliates or to the ownership by Fxxxxxx/Rxxxxxx LLC of any interest in TE/TOUSA, LLC or its Subsidiaries; or
(ii) solicit, induce or attempt to persuade any agentemployee, agent or supplier or customer of any Seller with respect to the Business to terminate or reduce or limit such employment, agency or business relationshiprelationship with Buyer in order to enter into any such relationship on behalf of any other business organization in competition with the Business (except for those employees of Sellers who may after Closing be employed by Century Marketing International, LLC); orprovided, however that nothing in clause (i) above shall prohibit Sellers or Fxxxxxx from engaging in the following businesses:
(iii1) hire any employee acquiring and converting existing apartment buildings into condominiums for sale;
(2) projects to develop multi-family apartment rental properties, including the conversion of such rental communities into condominiums for sale;
(3) “land banking”, meaning taking title to, providing land improvements, and financing raw land on Schedule 8.1(A)(iii) or solicit, induce or attempt behalf of homebuilders that prefer to persuade or assist any employee of the Business to leave the employment of Buyer or any of its Affiliatesacquire only finished lots; provided, however, that in the foregoing restriction event that the “builder” under a land banking arrangement fails to acquire all of the real property subject to such land banking arrangement, then such real property shall not prohibit a general solicitation be subject to the Right of First Offer Agreement;
(4) commercial real estate projects, including office, commercial, retail and industrial building;
(5) projects to develop residential condominiums over four (4) stories in height;
(6) development of raw land, including any combination of acquisition, entitlement and infrastructure improvement of residential lots for sale to homebuilders or individual owners; provided that Buyer shall be given the right of first offer with respect to the development of any residential lots located within the counties listed on Schedule 8.1(B);
(7) providing real estate mezzanine and other debt financing to real estate companies and entities, including companies and entities that are in the business of the sale or production of new, single-family, detached homes; provided that none of Sellers or Fxxxxxx may acquire any equity ownership interest in such companies or entities or their underlying assets or properties, except: (i) profit participation rights; and (ii) if, through the media exercise of foreclosure and similar enforcement remedies upon default, Sellers or Fxxxxxx obtain direct ownership rights in the companies or entities or their assets and properties, with the right to operate the assets and properties of such entities, so long as such entities do not build, market or sell single-family detached homes, townhomes, or residential condominiums less than five (5) stories in height; provided, however, that is not targeted at employees in the event that Sellers acquire any such real property through foreclosure or deed in lieu of foreclosure, such real property shall be subject to the Right of First Offer Agreement;
(8) building and marketing a maximum of two spec homes each year, provided that such homes are marketed and sold for a sales price no less than Two Million Dollars ($2,000,000.00) each; and
(9) development, construction and sale of the Business; Seller projects listed on Schedule 8.1(C) attached hereto, which shall also be excluded from the Right of First Offer Agreement.
(b) Each of Sellers and Fxxxxxx also covenants and agrees that from and after the Closing Date, it will not, and will not permit any of its Affiliates to, divulge or make use of any trade secrets or other confidential information of Sellers or the Business other than to disclose such secrets and information to Buyer or its Affiliates.
(bc) If Seller any Seller, Fxxxxxx or any Affiliate of any Seller or Fxxxxxx violates any of its obligations under this Section 8.1, 8.1 Buyer may proceed against it in law or in equity for such damages or other relief as a court may deem appropriate. Seller Each of Sellers and Fxxxxxx acknowledges that a violation of this Section 8.1 may cause Buyer irreparable harm which may not be adequately compensated for by money damages. Seller Each of Sellers and Fxxxxxx therefore agrees that in the event of any actual or threatened violation of this Section 8.1, Buyer shall be entitled, in addition to other remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against Seller Sellers, Fxxxxxx or such Affiliate of Seller Sellers to prevent any violations of this Section 8.1, without the necessity of posting a bond. The prevailing party in any action commenced under this Section 8.1 shall also be entitled to receive reasonable attorneys’ fees and court costs. It is the intent and understanding of each party hereto that if, in any action before any court or agency legally empowered to enforce this Section 8.1, 8.1 any term, restriction, covenant or promise in this Section 8.1 is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency.
Appears in 1 contract
Samples: Asset Purchase Agreement (Technical Olympic Usa Inc)
Covenant Not to Compete or Solicit Business. (a) In furtherance of the sale of the Purchased Acquired Assets and the Business to Buyer Purchaser hereunder by virtue of the transactions contemplated hereby and more effectively to protect the value and goodwill of the Purchased Acquired Assets and the Business so sold, Seller covenants and Company agrees that, neither Company nor its parent, its subsidiaries and/or any entity under common control with the Company will
(i) for a period ending on the third fourth anniversary of the Closing Date, neither Seller nor any of its Subsidiaries will:
directly or indirectly (iwhether as principal, agent, consultant, independent contractor, partner or otherwise) market to any health system customer any Software that is own, manage, operate, control, participate in, perform services for, or otherwise carry on, a business competitive with the Software included Business anywhere in the Businessworld, except as contemplated it being understood and acknowledged by the Reseller Agreement Amendment;Parties that the Business is global in nature and as such the restriction applying to the entire world is reasonable; or
(ii) solicitemploy, induce retain or attempt to persuade hire any agentemployee, supplier contractor, consultant, agent or customer of the Business to terminate or reduce or limit such agency or business relationship; or
(iii) hire any employee on Schedule 8.1(A)(iii) or solicit, induce or attempt to persuade persuade, on behalf of any other business organization in competition with the Business, any employee, contractor, consultant, agent or assist customer of Purchaser to terminate such employment, consulting, agency or business relationship in order to enter into any employee of the Business to leave the employment of Buyer or such relationship with any of its Affiliatessuch business organization; provided, however, that nothing set forth in this Section 5.4 shall prohibit Company or any Affiliate from owning as a passive investment not in excess of 5% in the foregoing restriction shall not prohibit a general solicitation through the media that is not targeted at employees of the Business; Seller also covenants and agrees that from and after the Closing Date, it will not, and will not permit any of its Affiliates to, divulge or make use aggregate of any trade secrets or other confidential information class of the Business other than to disclose capital stock of any corporation if such secrets and information to Buyer or its Affiliatesstock is publicly traded.
(b) If Seller Company or any Affiliate of Seller violates any of its obligations under this Section 8.15.4, Buyer Purchaser may proceed against it in law or in equity for such damages or other relief as a court may deem appropriate. Seller Company acknowledges that a violation of this Section 8.1 may 5.4may cause Buyer Purchaser irreparable harm which may not be adequately compensated for by money damages. Seller Company therefore agrees agree that in the event of any actual or threatened violation of this Section 8.15.4, Buyer Purchaser shall be entitled, in addition to other remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against Seller Company or such Affiliate of Seller its Affiliates to prevent any violations of this Section 8.1, without the necessity of posting a bond5.4. The prevailing party in any action commenced under this Section 8.1 shall 5.4shall also be entitled to receive reasonable attorneys’ fees and court costs. It is the intent and understanding of each party hereto that if, in any action before any court or agency legally empowered to enforce this Section 8.1Section5.4, any term, restriction, covenant or promise in this Section 8.1 is 5.4is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency.
Appears in 1 contract
Samples: Asset Purchase Agreement (Clearone Communications Inc)
Covenant Not to Compete or Solicit Business. (a) In ------------------------------------------- furtherance of the sale of the Purchased Assets and the Business to Buyer hereunder by virtue of the transactions contemplated hereby Merger and more effectively to protect the value and goodwill of the Purchased Assets assets and business of the Business so soldCompany, Seller covenants the Shareholders covenant and agrees agree that, for a period ending on the third anniversary of the Closing Date, neither Seller nor none of the Trust, any Shareholder, and Xxxxxxx Shareholder or any current or future controlled Affiliate of its Subsidiaries the Trust, any Shareholder or any Xxxxxxx Shareholder (other than the Company) (collectively, the "Restricted Parties") ------------------ will:
(i) market to any health system customer any Software that is directly or indirectly (whether as principal, agent, independent contractor, partner or otherwise) own, manage, operate, control, participate in, perform services for, or otherwise carry on, a business competitive with the Software included business conducted by the Company on the date hereof anywhere in the Business, except as contemplated Noncompetition Territory (it being understood by the Reseller Agreement Amendment;parties hereto that the business prohibited activities are not limited to any particular region because such business has been conducted by the Company in the Noncompetition Territory and the prohibited activities may be engaged in effectively from any location in the Noncompetition Territory); or
(ii) solicit, induce or attempt to persuade any agent, supplier or customer of the Business Surviving Corporation to terminate or reduce or limit such agency or business relationshiprelationship in order to enter into any such relationship on behalf of any other business organization in competition with the business conducted by the Company on the date hereof; or
(iii) solicit for hire any Person who is an employee of the Company on Schedule 8.1(A)(iii) the date hereof or solicit, at any time hereafter or induce or attempt to persuade or assist any employee of the Business such Person to leave the employment of Buyer or any of its Affiliatesterminate such Person's employment; provided, however, that the foregoing restriction nothing set forth in this Section 7.1 shall not prohibit a general solicitation through the media that is not targeted at employees any -------- ------- ----------- of the Business; Seller also covenants Restricted Parties from owning (x) non-voting securities or (y) not in excess of 5% in the aggregate of the voting power of the voting securities of the issuer if the securities owned are registered under the Securities Exchange Act of 1934, as amended.
(b) In addition, the Shareholders covenant and agrees agree that from and after none of the Closing Date, it Restricted Parties will not, and will not permit any of its Affiliates to, divulge or make use of any trade secrets or other confidential information of the Business Company other than to disclose such secrets and information (i) to the Buyer or its Affiliates, (ii) after it has become available to the public other than as a result of disclosure by a Restricted Party or (iii) if required to be disclosed under applicable law or judicial process, but only to the extent it must be disclosed.
(bc) If Seller or In the event any Affiliate of Seller the Restricted Parties violates any of its obligations under this Section 8.17.1, the Buyer or the Surviving Corporation may ----------- proceed against it in law or in equity for such damages or other relief as a court may deem appropriate. Seller acknowledges The Shareholders acknowledge that a violation of this Section 8.1 7.1 may cause the Buyer or the Surviving Corporation irreparable ----------- harm which may not be adequately compensated for by money damages. Seller The Shareholders therefore agrees that in the event of any actual or threatened violation of this Section 8.17.1, the Buyer or the Surviving Corporation shall be ----------- entitled, in addition to other remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against Seller or such Affiliate any of Seller the Restricted Parties to prevent any violations of this Section 8.17.1, without ----------- the necessity of posting a bond. The prevailing party in any action commenced under this Section 8.1 ------- 7.1 shall also be entitled to receive reasonable attorneys’ ' fees and court --- costs. .
(d) It is the intent and understanding of each party hereto that if, in any action before any court or agency legally empowered to enforce this Section 8.17.1, any term, restriction, covenant or promise in this Section 8.1 7.1 is ----------- ----------- found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency.
Appears in 1 contract
Samples: Merger Agreement (Aptargroup Inc)
Covenant Not to Compete or Solicit Business. (a) In furtherance of the sale of the Purchased Assets and the Business to Buyer hereunder by virtue of the transactions contemplated hereby and more effectively to protect the value and goodwill of the Purchased Assets and the Business so sold, Seller covenants and agrees that, for a period ending on the third fourth anniversary of the Closing Date, neither Seller nor any of its Subsidiaries entity controlled by Seller will:
(i) market to any health system customer any Software that is directly or indirectly (whether as principal, agent, consultant, independent contractor, partner or otherwise) own, manage, operate, control, participate in, perform services for, or otherwise carry on, a business competitive with the Software included Business anywhere in the Business, except as contemplated North America (it being understood by the Reseller Agreement Amendment;parties hereto that the Business is not limited to any particular region of North America and that such business may be engaged in effectively from any location in North America); or
(ii) solicit, induce or attempt to persuade persuade, on behalf of any agentother business organization in competition with the Business, supplier any employee, consultant, agent or customer of the Business Seller to terminate or reduce or limit such employment, consulting, agency or business relationship; or
(iii) hire relationship in order to enter into any employee on Schedule 8.1(A)(iii) or solicit, induce or attempt to persuade or assist such relationship with any employee of the Business to leave the employment of Buyer or any of its Affiliatessuch business organization; provided, however, that nothing set forth in this Section 7.1 shall prohibit Seller or any entity controlled by Seller from owning as a passive investment not in excess of 2% in the foregoing restriction aggregate of any class of capital stock of any corporation if such stock is publicly traded or from owning as a passive investment not in excess of 5% in the aggregate of any venture capital fund. Nothing in this Agreement shall not prohibit a general solicitation through Seller or any entity controlled by Seller from managing, controlling or participating in the media that is not targeted at employees of the Business; Seller also covenants and agrees that from and after the Closing Dateperformance of, it will not, and will not permit any of its Affiliates or providing services or advice with respect to, divulge or make use of any trade secrets or other confidential information of the Business other than Possible Excluded Matter pursuant to disclose such secrets and information arrangements satisfactory to Buyer or in its Affiliatesreasonable discretion.
(b) If Seller or any Affiliate of entity controlled by Seller violates any of its obligations under this Section 8.17.1, Buyer may proceed against it in law or in equity for such damages or other relief as a court may deem appropriate. Seller acknowledges that a violation of this Section 8.1 7.1 may cause Buyer irreparable harm which may not be adequately compensated for by money damages. Seller therefore agrees that in the event of any actual or threatened violation of this Section 8.17.1, Buyer shall be entitled, in addition to other remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against Seller or such Affiliate of entity controlled by Seller to prevent any violations of this Section 8.17.1, without the necessity of posting a bond. The prevailing party in any action commenced under this Section 8.1 7.1 shall also be entitled to receive reasonable attorneys’ fees and court costs. It is the intent and understanding of each party hereto that if, in any action before any court or agency legally empowered to enforce this Section 8.17.1, any term, restriction, covenant or promise in this Section 8.1 7.1 is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency.
Appears in 1 contract
Samples: Asset Purchase Agreement (Navigant International Inc)
Covenant Not to Compete or Solicit Business. (a) In furtherance of the sale of the Purchased Assets and the Business Equipment to Buyer hereunder by virtue of the transactions contemplated hereby and more effectively to protect the value and goodwill of the Purchased Assets and the Business Equipment so sold, Seller covenants and agrees that, for a period ending on the third fifth (5th) anniversary of the Closing Date, neither Seller nor any of its Subsidiaries will:
Affiliates will directly or indirectly (iwhether as principal, agent, independent contractor, partner or otherwise) market to any health system customer any Software that is competitive with the Software included engage in the Businessbusiness of printing one or two color, except as contemplated by the Reseller Agreement Amendment;
(ii) solicit, induce soft or attempt to persuade any agent, supplier or customer of the Business to terminate or reduce or limit such agency or business relationship; or
(iii) hire any employee on Schedule 8.1(A)(iii) or solicit, induce or attempt to persuade or assist any employee of the Business to leave the employment of Buyer or any of its Affiliateshard cover books; provided, however, that nothing set forth in this Section 7.1 shall prohibit Seller or its Affiliates from owning not in excess of 3% in the foregoing restriction aggregate of any class of capital stock of any corporation if such stock is publicly traded and listed on any national or regional stock exchange or on the Nasdaq national market. The geographic scope of this covenant not to compete shall not prohibit a general solicitation extend through the media that is not targeted at employees United States of America. Recognizing the specialized nature of the Business; operations of the Division, Seller also covenants acknowledges and agrees that from the duration, geographic scope and after the Closing Date, it will not, and will activity restrictions of this covenant not permit any of its Affiliates to, divulge or make use of any trade secrets or other confidential information of the Business other than to disclose such secrets and information to Buyer or its Affiliatescompete are reasonable.
(b) If Seller or any Affiliate of Seller violates any of its obligations under this Section 8.17.1, Buyer may proceed against it in law or in equity for such damages or other relief as a court may deem appropriate. Seller acknowledges that a violation of this Section 8.1 7.1 may cause Buyer irreparable harm which may not be adequately compensated for by money damages. Seller therefore agrees that in the event of any actual or threatened violation of this Section 8.17.1, Buyer shall be entitled, in addition to other remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against Seller or such Affiliate of Seller to prevent any violations of this Section 8.17.1, without the necessity of posting a bond. The prevailing party in any action commenced under this Section 8.1 7.1 shall also be entitled to receive reasonable attorneys’ fees and court costs. It is the intent and understanding of each party hereto that if, in any action before any court or agency legally empowered to enforce this Section 8.17.1, any term, restriction, covenant or promise in this Section 8.1 7.1 is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency.
Appears in 1 contract
Covenant Not to Compete or Solicit Business. (a) In furtherance ------------------------------------------- of the sale of the Purchased Assets and Shares to the Business to Buyer hereunder by virtue of the transactions contemplated hereby and more effectively to protect the value and goodwill of the Purchased Assets assets and business of the Business so soldCompany and its Subsidiaries, the Seller covenants and agrees that, for a period ending on the third anniversary of the Closing Date, neither none of the Seller, any Shareholder or any current or future controlled Affiliate of the Seller nor or any of Shareholder (other than the Company and its Subsidiaries Subsidiaries) (collectively, the Restricted Parties") will:: -------------------
(i) market to any health system customer any Software that is directly or indirectly (whether as principal, agent, independent contractor, partner or otherwise) own, manage, operate, control, participate in, perform services for, or otherwise carry on, a business competitive with the Software included business conducted by the Company and the Subsidiaries on the date hereof anywhere in the Business, except as contemplated Noncompetition Territory (it being understood by the Reseller Agreement Amendment;parties hereto that the business prohibited activities are not limited to any particular region because such business has been conducted by the Company in the Noncompetition Territory and the prohibited activities may be engaged in effectively from any location in the Noncompetition Territory); or
(ii) solicit, induce or attempt to persuade any agent, supplier or customer of the Business Company or any Subsidiary to terminate or reduce or limit such agency or business relationshiprelationship in order to enter into any such relationship on behalf of any other business organization in competition with the business conducted by the Company and the Subsidiaries on the date hereof; or
(iii) solicit for hire any Person who is an employee of the Company or any Subsidiary on Schedule 8.1(A)(iii) the date hereof or solicit, at any time hereafter or induce or attempt to persuade or assist any employee of the Business such Person to leave the employment of Buyer or any of its Affiliatesterminate such Person's employment; provided, however, that the foregoing restriction nothing set forth in this Section 7.1 shall not prohibit a general solicitation through the media that is not targeted at employees any -------- ------- ----------- of the Business; Restricted Parties from owning (x) non-voting securities or (y) not in excess of 5% in the aggregate of the voting power of the voting securities of the issuer if the securities owned are registered under the Securities Exchange Act of 1934, as amended.
(b) In addition, the Seller also covenants and agrees that from and after none of the Closing Date, it Restricted Parties will not, and will not permit any of its Affiliates to, divulge or make use of any trade secrets or other confidential information of the Business Company and its Subsidiaries other than to disclose such secrets and information (i) to the Buyer or its Affiliates, (ii) after it has become available to the public other than as a result of disclosure by a Restricted Party or (iii) if required to be disclosed under applicable law or judicial process, but only to the extent it must be disclosed.
(bc) If Seller or In the event any Affiliate of Seller the Restricted Parties violates any of its obligations under this Section 8.17.1, the Buyer or the Company may proceed against ----------- it in law or in equity for such damages or other relief as a court may deem appropriate. The Seller acknowledges that a violation of this Section 8.1 7.1 may ----------- cause the Buyer or the Company irreparable harm which may not be adequately compensated for by money damages. The Seller therefore agrees that in the event of any actual or threatened violation of this Section 8.17.1, the Buyer or the ----------- Company shall be entitled, in addition to other remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against Seller or such Affiliate any of Seller the Restricted Parties to prevent any violations of this Section 8.1------- 7.1, without the necessity of posting a bond. The prevailing party in any --- action commenced under this Section 8.1 7.1 shall also be entitled to receive ----------- reasonable attorneys’ ' fees and court costs. .
(d) It is the intent and understanding of each party hereto that if, in any action before any court or agency legally empowered to enforce this Section 8.17.1, any term, restriction, covenant or promise in this Section 8.1 7.1 is ----------- ----------- found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency.
Appears in 1 contract
Covenant Not to Compete or Solicit Business. (a) In furtherance of the sale of the Purchased Assets and the Business to Buyer hereunder by virtue of the transactions contemplated hereby and more effectively to protect the value and goodwill of the Purchased Assets and the Business so sold, Seller Parent covenants and agrees that, for a period ending on the third anniversary of the Closing Date, neither Seller Parent nor any of its Subsidiaries will:Affiliates will directly or indirectly (whether as principal, agent, independent contractor, partner or otherwise) own, manage, operate, control, participate in (other than as a supplier of components), or otherwise carry on, a business engaged in assembling, packaging, marketing or selling procedure kits or trays anywhere in or outside of the United States (it being understood by the parties hereto that the prohibited activities are not limited to any particular region because such business has been conducted by Parent throughout and outside the United States and the prohibited activities may be engaged in effectively from any location in or outside of the United States): provided, however, that nothing set forth in this Section 8.1 shall prohibit Parent or its Affiliates from owning not in excess of 5% in the aggregate of any class of capital stock of any corporation if such stock is publicly traded and listed on any national or regional stock exchange or on the NASDAQ national market system.
(ib) market At all times prior to the Deferred Closing, Parent shall not, and shall cause MedSurg not to, transfer or cause to be transferred from MedSurg any health system customer of its current employees. Buyer agrees to deliver to Parent no later than 75 days prior to the Deferred Closing a list of any Software employees of MedSurg to whom Buyer proposes to offer employment upon termination of the Contract Manufacturing Agreement (the "Designated Employees"). Parent agrees to cooperate with Buyer and to use its reasonable efforts to persuade the Designated Employees to accept positions with Buyer or one of its Affiliates. Parent covenants that is competitive with neither Parent nor any of its Affiliates will for a period ending on the Software included in third anniversary of the Business, except as contemplated by the Reseller Agreement Amendment;
(ii) solicitClosing Date, induce or attempt to persuade any Designated Employee (except any individual who has not accepted a position with Buyer or one of its Affiliates within 90 days after the Deferred Closing Date) or any employee, agent, supplier or customer of the Business to terminate or reduce or limit such employment, agency or business relationship; or
(iii) hire relationship in order to enter into any employee such relationship on Schedule 8.1(A)(iii) or solicit, induce or attempt to persuade or assist behalf of any employee of the Business to leave the employment of Buyer other business relationship with Parent or any of its Affiliates; provided, however, that the foregoing restriction shall not prohibit a general solicitation through the media that is not targeted at employees of Affiliates or in competition with the Business; Seller also .
(c) In addition, Parent covenants and agrees that from and after the Closing Date, neither it will not, and will not permit nor any of its Affiliates to, will divulge or make use of any trade secrets or other confidential information of the Business other than to disclose such secrets and information to Buyer or its Affiliates.
(bd) If Seller In the event Parent or any Affiliate of Seller Parent violates any of its obligations under this Section 8.1, Buyer may proceed against it in law or in equity for such damages or other relief as a court may deem appropriate. Seller Parent acknowledges that a violation of this Section 8.1 may cause Buyer irreparable harm which may not be adequately compensated for by money damages. Seller Parent therefore agrees that in the event of any actual or threatened violation of this Section 8.1, Buyer shall be entitled, in addition to other remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against Seller Parent or such Affiliate of Seller Parent to prevent any violations of this Section 8.1, without the necessity of posting a bond. The prevailing party in any action commenced under this Section 8.1 shall also be entitled to receive reasonable attorneys’ ' fees and court costs. It is the intent and understanding of each party hereto that if, in any action before any court or agency legally empowered to enforce this Section 8.1, any term, restriction, covenant or promise in this Section 8.1 is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency.
Appears in 1 contract
Covenant Not to Compete or Solicit Business. (a) In furtherance consideration of the sale of ------------------------------------------- purchase price paid to the Purchased Assets Shareholders, and the Business to Buyer hereunder by virtue of the transactions contemplated hereby and more effectively to protect the value and goodwill of the Purchased Assets assets and business of the Business so soldCompany to be acquired hereby, Seller covenants the Shareholders covenant and agrees agree that, for a period ending on the third anniversary of the Closing Date, neither Seller Shareholder nor any of its Subsidiaries the Shareholder's Affiliates will:
(i) market directly or indirectly (whether as principal, agent, independent contractor, partner or otherwise) own, manage, operate, control, participate in, perform services for, or otherwise carry on, a business similar to any health system customer any Software that is or competitive with the Software included business of the Company or any of its Subsidiaries or Affiliates (collectively, the "Managed Companies") anywhere in the Business, except as contemplated by states in which the Reseller Agreement Amendment;Company does business; or
(ii) solicit, induce or attempt to persuade any agentemployee, supplier agent or customer of the Business Managed Companies to terminate or reduce or limit such employment, agency or business relationship; or
(iii) hire relationship in order to enter into any employee such relationship on Schedule 8.1(A)(iii) or solicitbehalf of any other business organization in competition with the Managed Companies. In addition, induce or attempt to persuade or assist any employee of the Business to leave the employment of Buyer or any of its Affiliates; provided, however, that the foregoing restriction shall not prohibit a general solicitation through the media that is not targeted at employees of the Business; Seller also each Shareholder covenants and agrees that from and after the Closing Date, it will not, and will not permit neither he nor any of its his Affiliates to, will divulge or make use of any trade secrets or other confidential information of the Business business of the Managed Companies other than to disclose such secrets and information to Buyer the Purchaser or its Affiliates.
(b) If Seller or any Affiliate . Without limiting the right of Seller violates any of its obligations under this Section 8.1, Buyer may proceed against the Purchaser to pursue all other legal and equitable rights available to it in law or in equity for such damages or other relief as a court may deem appropriate. Seller acknowledges that a violation of this Section 8.1 may cause Buyer irreparable harm which may not be adequately compensated for 5.7 by money damages. Seller therefore agrees a Shareholder or his Affiliates, it is agreed that in the event of any actual or threatened violation of this Section 8.1, Buyer shall be entitled, in addition to other remedies cannot fully compensate the Purchaser or the Company for such a violation and that it may have, to a temporary restraining order the Purchaser and to preliminary and final injunctive relief against Seller or such Affiliate of Seller to prevent any violations of this Section 8.1, without the necessity of posting a bond. The prevailing party in any action commenced under this Section 8.1 Company shall also each be entitled to receive reasonable attorneys’ fees and court costsinjunctive relief to prevent violation or continuing violation thereof. It is the intent and understanding of each party hereto that if, in any action before any court or agency legally empowered to enforce this Section 8.15.7, any term, restriction, covenant or promise in this Section 8.1 5.7 is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency. Nothing contained in this Section 5.7 shall limit or otherwise affect a Shareholder's obligation under any employment agreement entered into with the Purchaser.
Appears in 1 contract
Covenant Not to Compete or Solicit Business. (a) In furtherance of the sale of the Purchased Assets and the Business to Buyer hereunder by virtue of the transactions contemplated hereby and more effectively to protect the value and goodwill of the Purchased Assets and the Business so sold, Seller covenants and agrees that, for a period ending on the third anniversary of date falling 36 months after the Closing Date, neither Seller nor any of its Subsidiaries Affiliates will:
(ia) market to any health system customer any Software that is competitive with the Software included directly or indirectly (whether as principal, agent, independent contractor, partner, shareholder or otherwise) own, manage, operate, control, participate in, or otherwise carry on, or set up a semiconductor assembly and testing facility anywhere in the Business, except as contemplated by the Reseller Agreement Amendment;Thailand; or
(iib) solicit, induce or attempt to persuade any agent, employee or supplier of goods or customer services of the Business Buyer to terminate such employment or reduce or limit such agency or business relationship; or
(iii) hire relationship in order to enter into any employee such relationship on Schedule 8.1(A)(iii) or solicit, induce or attempt to persuade or assist behalf of any employee of other business organization in competition with the Business to leave the employment of Buyer or any of its AffiliatesBusiness; provided, however, that nothing set forth in this Section 8.1 shall prohibit Seller or its Affiliates (x) from owning not in excess of 5% in the foregoing restriction shall not prohibit a general solicitation through the media that aggregate of any class of capital stock of any corporation if such stock is not targeted at employees of the Business; publicly traded and listed on any national or regional stock exchange. In addition, Seller also covenants and agrees that from and after the Closing Date, neither it will not, and will not permit nor any of its Affiliates to, will divulge or make use of any trade secrets or other confidential information of the Business other than to disclose such secrets and information to Buyer or its Affiliates.
(b) If Seller or any Affiliate of Seller violates any of its obligations under this Section 8.1, Buyer may proceed against it in law or in equity for such damages or other relief as a court may deem appropriate. Seller acknowledges that a violation of this Section 8.1 may cause Buyer irreparable harm which may not be adequately compensated for by money damages. Seller therefore agrees that in the event of any actual or threatened violation of this Section 8.1, Buyer shall be entitled, in addition to other equitable remedies that it may have, to a temporary restraining order and to preliminary Table of Contents and final injunctive relief against Seller or such Affiliate of Seller to prevent any violations of this Section 8.1, without the necessity of posting a bond. The prevailing party in any action commenced under this Section 8.1 shall also be entitled to receive reasonable attorneys’ fees and court costs. It is the intent and understanding of each party hereto that if, in any action before any court or agency legally empowered to enforce this Section 8.1, any term, restriction, covenant or promise in this Section 8.1 is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency.
Appears in 1 contract
Covenant Not to Compete or Solicit Business. (a) In furtherance of the sale of the Equity Interests, the Purchased Assets and the Business to Buyer hereunder by virtue of the transactions contemplated hereby and more effectively to protect the value and goodwill of the Equity Interests, the Purchased Assets and the Business so sold, Seller each of Parent and ATS Dermagraft covenants and agrees that, for a period ending on the third anniversary of the Closing Date, neither Seller Parent, ATS Dermagraft nor any of their respective Affiliates shall directly or indirectly (whether as principal, agent, independent contractor, partner or otherwise) own, manage, operate, control, participate in, or otherwise carry on, any business competitive with the Business in the United States or anywhere else in the world where the Business is being conducted on the date hereof or planned to be conducted in the next 12 months; provided, however, that nothing set forth in this Section 8.1 shall prohibit Sellers or their respective Affiliates from owning not in excess of 5% in the aggregate of any class of capital stock of any corporation if such stock is publicly traded and listed on any national or regional stock exchange or on the Nasdaq national market system.
(b) Each of Parent and ATS Dermagraft covenants that neither it nor any of its Subsidiaries will:
(i) market to any health system customer any Software that is competitive with Affiliates will for a period ending on the Software included in first anniversary of the Business, except as contemplated by the Reseller Agreement Amendment;
(ii) solicitClosing Date, induce or attempt to persuade any Employee, agent, supplier or customer of the Business to (i) terminate or reduce or limit such employment, agency or business relationship; or
(iii) hire relationship in order to enter into any employee such relationship for, with or on Schedule 8.1(A)(iii) behalf of Parent or solicit, induce or attempt to persuade or assist any employee of the Business to leave the employment of Buyer ATS Dermagraft or any of its Affiliatestheir respective Affiliates or (ii) otherwise engage in activities in competition with the Business; provided, however, that the foregoing restriction solicitation or recruitment prohibitions of this Section 8.1(b) shall not prohibit a be breached by any general solicitation through the media by Parent, ATS Dermagraft or any of their respective Affiliates that is not targeted at employees specifically directed to any such Employee.
(c) Subject to Section 8.4, Buyer covenants that neither it nor any of its Affiliates will for a period ending on the first anniversary of the Closing Date, induce or attempt to persuade any employee, agent, or customer of Parent or ATS Dermagraft to terminate such employment, agency or business relationship in order to (i) enter into any such relationship for, with or on behalf of Buyer or any of its Affiliates or (ii) otherwise engage in activities in competition with the ATS Business; Seller also provided, however, that the solicitation or recruitment prohibitions of this Section 8.1(c) shall not be breached by any general solicitation by Buyer or any of its Affiliates that is not specifically directed to any such employee of Parent or ATS Dermagraft.
(d) Each of Parent and ATS Dermagraft covenants and agrees that from and after the Closing Date, neither it will not, and will not permit nor any of its Affiliates to, (unless subject to a confidentiality agreement in form and substance reasonably satisfactory to Buyer) will divulge (in any circumstance) or make use (other than outside the scope of the Business) of any trade secrets Trade Secrets or other confidential information of the Business or related to the Purchased Assets (other than to disclose such secrets and information to Buyer or its Affiliates).
(be) If Seller In the event Buyer, Parent or ATS Dermagraft or any Affiliate of Seller their respective Affiliates violates any of its obligations under this Section 8.1, Buyer the non-violating party may proceed against it in law or in equity for such damages or other relief as a court may deem appropriate. Seller acknowledges Buyer and Sellers acknowledge that a violation of this Section 8.1 may cause Buyer the non-violating party irreparable harm which that may not be adequately compensated for by money damages. Seller Buyer and Sellers therefore agrees agree that in the event of any actual or threatened violation of this Section 8.1, Buyer the non-violating party shall be entitled, in addition to other remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against Seller each violating party or such any Affiliate of Seller each violating party to prevent any violations of this Section 8.1, without the necessity of posting a bond. The prevailing party in any action commenced under this Section 8.1 shall also be entitled to receive reasonable attorneys’ ' fees and court costs. It is the intent and understanding of each party hereto that if, in any action before any court or agency legally empowered to enforce this Section 8.1, any term, restriction, covenant or promise in this Section 8.1 is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency.
Appears in 1 contract
Samples: Asset and Equity Purchase Agreement (Advanced Tissue Sciences Inc)
Covenant Not to Compete or Solicit Business. (a) Section 1.1. In recognition of the fact that Seller and Seller Equityholder are receiving significant economic value under the Purchase Agreement, and in furtherance of the sale of the Purchased Assets LLC Interests and the Business to Buyer hereunder by virtue of the transactions contemplated hereby thereby and more effectively to protect the value and goodwill of the Purchased Assets and the Business so sold, Seller Equityholder acknowledges that Buyer and Parent would be irreparably damaged if Seller Equityholder or any of its Affiliates were to compete with Buyer, Parent or the Business and each covenants and agrees that, for a period beginning on the Closing Date and ending on the third anniversary of the Closing Date, neither Seller nor any Equityholder shall not, and shall cause each of its Subsidiaries willSeller Equityholder’s Affiliates not to:
(i) market to any health system customer any Software that is directly or indirectly (whether as principal, agent, independent contractor, partner, franchisor, licensor or otherwise) own, lease, manage, operate, control, participate in, perform services for, or otherwise carry on, a business competitive with the Software included Business (A) within a sixty-five (65) mile radius of the Property or (B) at the Isle of Capri Casino Hotel Xxxx located in Xxxx, Mississippi (together, the Business, except as contemplated by the Reseller Agreement Amendment“Existing Territory”);
(ii) solicitdirectly or indirectly (whether as principal, induce or attempt to persuade any agent, supplier independent contractor, partner, franchisor, licensor or customer otherwise) organize, create, establish, own, lease, manage, operate, control, participate in, perform services for, directly invest or finance or engage in investment banking, restructuring investment or similar distressed or restructuring investment activities or similar investment advisory activities for or otherwise carry on, a new development for a business competitive with the Business within a one hundred (100) mile radius of the Business to terminate or reduce or limit such agency or business relationshipProperty (the “Future Territory” and, together with the Existing Territory, the “Territory”); or
(iii) hire any employee on Schedule 8.1(A)(iii) or solicit, induce solicit or attempt to persuade or assist any employee of the Company to terminate such employment relationship (whether for the purpose of entering into any such relationship on behalf of any other business organization in competition with the Business to leave the employment of Buyer or any of its Affiliates; otherwise) provided, however, that the foregoing restriction shall not prohibit a Seller Equityholder from (A) engaging in the general solicitation through (whether by newspaper, trade publication or other periodical or pursuant to the media use of an executive search consultant) of employees (or hiring any employees that respond to such general solicitation) so long as such solicitation is not targeted directed specifically at employees any employee of the Business; Company after the Closing, or (B) soliciting any employee after the Closing who is no longer employed by the Company. Notwithstanding the foregoing, nothing set forth in this Agreement shall prohibit Seller also Equityholder or any of its Affiliates from owning the debt or equity securities of or participating in distressed or restructuring investment activities with respect to any entity which operates, through a subsidiary business or otherwise, a business which competes with the Business in the Territory, as long as (x) not more than 20% of such entity’s revenues, as of the date hereof with respect to existing ownership of securities or distressed/restructuring activities or as of the date of such investment or commencement of such distressed/restructuring activities with respect to new investments or distressed/restructuring activities, are derived from the operations in the Territory which are competitive with the Business and (y) neither Seller Equityholder nor any of its Affiliates owns as of the date of this Agreement, or will after the date hereof acquire, sufficient debt or equity securities to own at the time of acquisition, in the aggregate, debt and equity securities which together constitute more than 20% of the voting power of such entity.
Section 1.2. Seller Equityholder covenants and agrees that for a period of three (3) years from and after the Closing Date, Date it will not, and will not permit any of its Affiliates to, divulge or make use of any trade secrets Trade Secrets or other confidential information of the Business Business, other than to disclose such secrets Trade Secrets and information to Buyer Buyer, Parent or its their Affiliates, or as otherwise excepted or permitted under Section 6.16 of the Purchase Agreement, whether with respect to what is deemed not to be confidential information, or with respect to permitted disclosures.
(b) Section 1.3. The parties agree that the covenants set forth in this Agreement are reasonable with respect to duration, geographical area and scope. If Seller or any Affiliate of Seller Equityholder violates any of its obligations under this Section 8.1Agreement, Buyer or Parent may proceed against it in law or in equity for such damages or other relief as a court may deem appropriate. Seller Equityholder acknowledges that a violation of this Section 8.1 Agreement may cause Buyer or Parent irreparable harm which may not be adequately compensated for by money damages. Seller Equityholder therefore agrees that in the event of any actual or threatened violation of this Section 8.1Agreement, Buyer and Parent shall be entitled, in addition to other remedies that it may have, to seek a temporary restraining order and to seek preliminary and final injunctive relief against Seller Equityholder or such Affiliate any of Seller its Affiliates to prevent any violations of this Section 8.1Agreement, without the necessity of posting a bond. The prevailing party in any action commenced under this Section 8.1 shall also be entitled to receive reasonable attorneys’ fees and court costs. It is the intent and understanding of each party hereto that if, in any action before any court or agency legally empowered to enforce this Section 8.1Agreement, any term, restriction, covenant or promise in this Section 8.1 Agreement is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency, and such court or agency shall be empowered to reform the terms hereof (including by modifying or reducing the duration, geographical area or scope hereof) or to delete specific words or phrases included herein.
Section 1.4. For purposes of this Agreement, the Broker (and its Affiliates) or any other investment banking firm with which Xxxx X. Xxxxxx is affiliated (and such firm’s Affiliates) shall not be deemed to be Affiliates of Seller Equityholder.
Section 1.5. The parties agree that this Agreement shall not apply to the Casino Management Company or any of its managers, directors, officers or employees.
Section 1.6. The parties agree that all claims for damages and all remedies under this Agreement are subject to the provisions of the Purchase Agreement, including the limitations on damages and remedies contained in Article IX thereof. Claims based upon or arising out of this Agreement may be asserted by Buyer at any time before the date that is three (3) months after the third anniversary of the Closing.
Section 1.7. Seller Equityholder represents and warrants to the Buyer that:
(a) it is a [type of entity] duly organized, validly existing, and in good standing under the laws of the jurisdiction of its organization;
(b) it has full [corporate] power and authority to execute and deliver this Agreement and to perform its obligations hereunder;
(c) the execution and delivery of this Agreement by it and the performance by it of its obligations hereunder have been duly and validly authorized by all necessary [corporate] action and no other [corporate] proceedings on the part of it are necessary to authorize this Agreement or to perform its obligations contemplated hereunder;
(d) this Agreement has been duly and validly executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and similar laws of general application relating to or affecting creditors’ rights and to general principles of equity;
(e) the execution, delivery and performance of this Agreement will not (i) conflict with, result in a breach of the terms, conditions or provisions of, or constitute a default, an event of default or an event creating rights of acceleration, termination or cancellation or a loss of rights under (A) its organizational documents, (B) any material note, instrument, agreement, mortgage, lease, license, franchise, permit or other authorization, right, restriction or obligation to which it is a party or any of its assets or properties is subject or by which it is bound, or (C) any court order to which it is a party or by which it is bound; (ii) violate any requirements of Laws affecting it; or (iii) require the approval, consent, authorization or act of, or the making by it of any declaration, filing or registration with, any Person; and
(f) there are no lawsuits, claims, suits, proceedings or investigations pending or, to the actual knowledge of it, threatened against it or to which it is a party or by which it or any of its assets or properties is bound (i) that relate to this Agreement or any action taken or to be taken by it in connection herewith, or which seek to enjoin, prevent, alter or delay, or obtain monetary damages in respect of this Agreement or (ii) that would reasonably be expected to materially and adversely affect the ability of it to perform its obligations under this Agreement. Seller Equityholder is not subject to any court order that seeks to enjoin, prevent, alter, delay or obtain money damages in respect of this Agreement.
Appears in 1 contract
Covenant Not to Compete or Solicit Business. (a) In furtherance of the sale of the Equity Interests, the Purchased Assets and the Business to Buyer hereunder by virtue of the transactions contemplated hereby and more effectively to protect the value and goodwill of the Equity Interests, the Purchased Assets and the Business so sold, Seller each of Parent and ATS Dermagraft covenants and agrees that, for a period ending on the third anniversary of the Closing Date, neither Seller Parent, ATS Dermagraft nor any of their respective Affiliates shall directly or indirectly (whether as principal, agent, independent contractor, partner or otherwise) own, manage, operate, control, participate in, or otherwise carry on, any business competitive with the Business in the United States or anywhere else in the world where the Business is being conducted on the date hereof or planned to be conducted in the next 12 months; provided, however, that nothing set forth in this Section 8.1 shall prohibit Sellers or their respective Affiliates from owning not in excess of 5% in the aggregate of any class of capital stock of any corporation if such stock is publicly traded and listed on any national or regional stock exchange or on the Nasdaq national market system.
(b) Each of Parent and ATS Dermagraft covenants that neither it nor any of its Subsidiaries will:
(i) market to any health system customer any Software that is competitive with Affiliates will for a period ending on the Software included in first anniversary of the Business, except as contemplated by the Reseller Agreement Amendment;
(ii) solicitClosing Date, induce or attempt to persuade any Employee, agent, supplier or customer of the Business to (i) terminate or reduce or limit such employment, agency or business relationship; or
(iii) hire relationship in order to enter into any employee such relationship for, with or on Schedule 8.1(A)(iii) behalf of Parent or solicit, induce or attempt to persuade or assist any employee of the Business to leave the employment of Buyer ATS Dermagraft or any of its Affiliatestheir respective Affiliates or (ii) otherwise engage in activities in competition with the Business; provided, however, that the foregoing restriction solicitation or recruitment prohibitions of this Section 8.1(b) shall not prohibit a be breached by any general solicitation through the media by Parent, ATS Dermagraft or any of their respective Affiliates that is not targeted at employees specifically directed to any such Employee.
(c) Subject to Section 8.4, Buyer covenants that neither it nor any of its Affiliates will for a period ending on the first anniversary of the Closing Date, induce or attempt to persuade any employee, agent, or customer of Parent or ATS Dermagraft to terminate such employment, agency or business relationship in order to (i) enter into any such relationship for, with or on behalf of Buyer or any of its Affiliates or (ii) otherwise engage in activities in competition with the ATS Business; Seller also provided, however, that the solicitation or recruitment prohibitions of this Section 8.1(c) shall not be breached by any general solicitation by Buyer or any of its Affiliates that is not specifically directed to any such employee of Parent or ATS Dermagraft.
(d) Each of Parent and ATS Dermagraft covenants and agrees that from and after the Closing Date, neither it will not, and will not permit nor any of its Affiliates to, (unless subject to a confidentiality agreement in form and substance reasonably satisfactory to Buyer) will divulge (in any circumstance) or make use (other than outside the scope of the Business) of any trade secrets Trade Secrets or other confidential information of the Business or related to the Purchased Assets (other than to disclose such secrets and information to Buyer or its Affiliates).
(be) If Seller In the event Buyer, Parent or ATS Dermagraft or any Affiliate of Seller their respective Affiliates violates any of its obligations under this Section 8.1, Buyer the non-violating party may proceed against it in law or in equity for such damages or other relief as a court may deem appropriate. Seller acknowledges Buyer and Sellers acknowledge that a violation of this Section 8.1 may cause Buyer the non-violating party irreparable harm which that may not be adequately compensated for by money damages. Seller Buyer and Sellers therefore agrees agree that in the event of any actual or threatened violation of this Section 8.1, Buyer the non-violating party shall be entitled, in addition to other remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against Seller each violating party or such any Affiliate of Seller each violating party to prevent any violations of this Section 8.1, without the necessity of posting a bond. The prevailing party in any action commenced under this Section 8.1 shall also be entitled to receive reasonable attorneys’ fees and court costs. It is the intent and understanding of each party hereto that if, in any action before any court or agency legally empowered to enforce this Section 8.1, any term, restriction, covenant or promise in this Section 8.1 is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency.
Appears in 1 contract
Samples: Asset and Equity Purchase Agreement (Advanced Tissue Sciences Inc)
Covenant Not to Compete or Solicit Business. (a) 8.7.1. In furtherance of the sale of the Purchased Assets and the Business Shares to Buyer hereunder by virtue of the transactions contemplated hereby and more effectively to protect the value and goodwill of the Purchased Assets Business of the Acquired Companies and in consideration of the Business so soldPurchase Price, Seller covenants and agrees that, after the Closing:
(a) for a period ending on the third anniversary of 18 months after the Closing Date, neither Seller nor any of its Subsidiaries will:
Seller's Affiliates will directly or indirectly (iwhether as owner, consultant, manager, principal, agent, shareholder, partner or otherwise) market own, manage, operate, control, participate in, or otherwise carry on, any business that produces, manufactures or sells any of the products produced, manufactured or sold by any of the Acquired Companies on the Closing Date anywhere in North America; PROVIDED, HOWEVER, THAT Buyer expressly acknowledges and agrees that PCC and Wheeling Corrugating, a division of Wheeling-Pittsburgh Steel Corporation, may continue to any health system customer any Software that is competitive with engage in their respective businesses as conducted on the Software included Closing Date without violating the foregoing covenant; and, PROVIDED FURTHER, THAT nothing set forth in this Section 8.7 shall prohibit Seller or Seller's Affiliates from owning not in excess of 1% in the Business, except as contemplated by the Reseller Agreement Amendmentaggregate of any class of capital stock of any corporation if such stock is publicly traded and listed on any national or regional stock exchange or on The Nasdaq National Market;
(iib) solicitfor a period ending 18 months after the Closing Date, neither Seller nor any of Seller's Affiliates will directly or indirectly induce or attempt to persuade any agent, supplier or customer of the Business an Acquired Company to terminate or reduce or limit alter such agency or business relationshiprelationship with such Acquired Company; or
(iiic) hire any employee on Schedule 8.1(A)(iii) or solicitexcept as approved by Buyer, induce or attempt to persuade or assist any employee of the Business to leave the employment of Buyer or any of its Affiliates; provided, however, that the foregoing restriction shall not prohibit for a general solicitation through the media that is not targeted at employees of the Business; Seller also covenants and agrees that from and period ending 18 months after the Closing Date, it neither Seller nor any of Seller's Affiliates will notemploy or otherwise retain the services of any Person who was employed by any of the Acquired Companies at any time between March 31, 2002, and will not permit the Closing Date; PROVIDED, HOWEVER, THAT Buyer expressly acknowledges and agrees that Seller or any Affiliate of Seller may, without violating the foregoing covenant, (i) employ Xxxxx X. Xxxxx and Xxxxxx X. Xxxxxxx at any time; (ii) immediately employ any Person who Buyer or any of its Affiliates tothe Acquired Companies voluntarily terminates after the Closing Date; or (iii) employ any Person who voluntarily terminates such Person's employment with any of the Acquired Companies after the Closing Date and who is not offered total annual compensation after the Closing at least equal to 100% of such Person's normal total annual compensation from the Acquired Companies (excluding any retention bonus or other non-recurring payments) in the year prior to Closing.
8.7.2. In addition, Seller covenants and agrees that neither Seller nor any Affiliate of Seller will divulge or make use of any trade secrets or other confidential information Trade Secrets of the Business Acquired Companies other than to disclose such secrets and information Trade Secrets to Buyer or its AffiliatesBuyer.
(b) If 8.7.3. In the event Seller or any Affiliate of Seller violates any of its such Person's obligations under this Section 8.18.7, Buyer or any of the Acquired Companies may proceed against it such Person in law or in equity for such damages Damages or other relief as a court may deem appropriate. Seller acknowledges that a violation of this Section 8.1 8.7 may cause Buyer or the Acquired Companies irreparable harm which may not be adequately compensated for by money damages. Seller therefore agrees that in the event of any actual or threatened violation of this Section 8.18.7, Buyer or any of the Acquired Companies shall be entitled, in addition to other remedies that it Buyer or any Acquired Company may have, to a temporary restraining order and to preliminary and final injunctive relief against Seller or such Affiliate of Seller to prevent any violations of this Section 8.18.7, without the necessity of posting a bond. The prevailing party in any action commenced under this Section 8.1 8.7 shall also be entitled to receive reasonable attorneys’ ' fees and court costs.
8.7.4. It is the intent and understanding of each party hereto that if, in any action Proceeding before any court Governmental Body or agency arbitrator legally empowered to enforce this Section 8.18.7, any term, restriction, covenant or promise in this Section 8.1 8.7 is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court Governmental Body or agencyarbitrator.
Appears in 1 contract
Samples: Stock Purchase Agreement (Worthington Industries Inc)
Covenant Not to Compete or Solicit Business. (a) In furtherance of the sale of the Purchased Assets and the Business Shares to Buyer hereunder by virtue of the transactions contemplated hereby and more effectively to protect the value and goodwill of the Purchased Assets Business, the ACME Entities covenant and the Business so sold, Seller covenants and agrees agree that, for a period ending on :
(i) until the third anniversary of the Closing Date, neither Seller the ACME Entities nor any of its Subsidiaries their Affiliates (which term "Affiliate" shall not include the Company for purposes of this Section) will:
, directly or indirectly (iwhether as principal, agent, independent contractor, partner or otherwise) market own, manage, operate, control, provide consulting or management services for, or otherwise carry on, a television broadcast station similar to any health system customer any Software that is or competitive with the Software included in the Business, except Business as contemplated conducted by the Reseller Agreement Amendment;Company as of the Closing Date (a "Competitive Business") anywhere within the St. Louis, Missouri Designated Market Area (as defined by Nielsen Media Research, Inc.); or
(ii) solicitxxxxx xhe first anniversary of the Closing Date, neither the ACME Entities nor any of their Affiliates will, induce or attempt to persuade any agentcurrent employee, supplier agent or customer of the Business to terminate or reduce or limit such employment, agency or business relationship; or
(iii) hire relationship in order to enter into any employee such relationship on Schedule 8.1(A)(iii) or solicit, induce or attempt to persuade or assist behalf of any employee of the Business to leave the employment of Buyer or any of its AffiliatesCompetitive Business; provided, however, that nothing set forth in this Section 7.4 shall prohibit the foregoing restriction shall not prohibit a general solicitation through the media that is not targeted at employees of the Business; Seller also covenants and agrees that from and after the Closing Date, it will not, and will not permit ACME Entities or any of its their Affiliates tofrom owning not in excess of 5% in the aggregate of any class of capital stock of any corporation if such stock is publicly traded and listed on any national or regional stock exchange or included on the NASDAQ market system or similar system. In addition, the ACME Entities covenant and agree that neither they nor any of their Affiliates will divulge or make use of any trade secrets or other confidential information of the Business existing as of the Closing Date other than to disclose such secrets and information to Buyer or its Affiliates.
(b) If Seller , except as required by applicable law or regulation or by legal process. In the event the ACME Entities or any Affiliate of Seller violates their Affiliates violate any of its their obligations under this Section 8.17.4, Buyer may proceed against it them in law or in equity for such damages or other relief as a court may deem appropriate. Seller acknowledges The ACME Entities acknowledge that a violation of this Section 8.1 7.4 may cause Buyer irreparable harm which may not be adequately compensated for by money damages. Seller The ACME Entities therefore agrees agree that in the event of any actual or threatened violation of this Section 8.17.4, Buyer shall be entitled, in addition to other remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against Seller the ACME Entities or such Affiliate of Seller the ACME Entities to prevent any violations of this Section 8.17.4, without the necessity of posting a bond. The prevailing party in any action commenced under this Section 8.1 shall also be entitled to receive reasonable attorneys’ fees and court costs. It is the intent and understanding of each party hereto that if, in any action before any court or agency legally empowered to enforce this Section 8.17.4, any term, restriction, covenant or promise in this Section 8.1 7.4 is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency.
Appears in 1 contract
Covenant Not to Compete or Solicit Business. (a) 8.7.1. In furtherance of the sale of the Purchased Assets and the Business Shares to Buyer hereunder by virtue of the transactions contemplated hereby and more effectively to protect the value and goodwill of the Purchased Assets Business of the Acquired Companies and in consideration of the Business so soldPurchase Price, Seller covenants and agrees that, after the Closing:
(a) for a period ending on the third anniversary of 18 months after the Closing Date, neither Seller nor any of its Subsidiaries will:
Seller's Affiliates will directly or indirectly (iwhether as owner, consultant, manager, principal, agent, shareholder, partner or otherwise) market own, manage, operate, control, participate in, or otherwise carry on, any business that produces, manufactures or sells any of the products produced, manufactured or sold by any of the Acquired Companies on the Closing Date anywhere in North America; PROVIDED, HOWEVER, THAT Buyer expressly acknowledges and agrees that PCC and Wheeling Corrugating, a division of Wheeling-Pittsburgh Steel Corporation, may continue to any health system customer any Software that is competitive with engage in their respective businesses as conducted on the Software included Closing Date without violating the foregoing covenant; and, PROVIDED FURTHER, THAT nothing set forth in this Section 8.7 shall prohibit Seller or Seller's Affiliates from owning not in excess of 1% in the Business, except as contemplated by the Reseller Agreement Amendmentaggregate of any class of capital stock of any corporation if such stock is publicly traded and listed on any national or regional stock exchange or on The Nasdaq National Market;
(iib) solicitfor a period ending 18 months after the Closing Date, neither Seller nor any of Seller's Affiliates will directly or indirectly induce or attempt to persuade any agent, supplier or customer of the Business an Acquired Company to terminate or reduce or limit alter such agency or business relationshiprelationship with such Acquired Company; or
(iiic) hire any employee on Schedule 8.1(A)(iii) or solicitexcept as approved by Buyer, induce or attempt to persuade or assist any employee of the Business to leave the employment of Buyer or any of its Affiliates; provided, however, that the foregoing restriction shall not prohibit for a general solicitation through the media that is not targeted at employees of the Business; Seller also covenants and agrees that from and period ending 18 months after the Closing Date, it neither Seller nor any of Seller's Affiliates will notemploy or otherwise retain the services of any Person who was employed by any of the Acquired Companies at any time between March 31, 2002, and will not permit the Closing Date; PROVIDED, HOWEVER, THAT Buyer expressly acknowledges and agrees that Seller or any Affiliate of Seller may, without violating the foregoing covenant, (i) employ Garen W. Smith and Arthur L. Whitman at any time; (ii) immediately xxxxxx xxx Xxxson wxx Xxxxx xx xxx xf the Acquired Companies voluntarily terminates after the Closing Date; or (iii) employ any Person who voluntarily terminates such Person's employment with any of its Affiliates tothe Acquired Companies after the Closing Date and who is not offered total annual compensation after the Closing at least equal to 100% of such Person's normal total annual compensation from the Acquired Companies (excluding any retention bonus or other non-recurring payments) in the year prior to Closing.
8.7.2. In addition, Seller covenants and agrees that neither Seller nor any Affiliate of Seller will divulge or make use of any trade secrets or other confidential information Trade Secrets of the Business Acquired Companies other than to disclose such secrets and information Trade Secrets to Buyer or its AffiliatesBuyer.
(b) If 8.7.3. In the event Seller or any Affiliate of Seller violates any of its such Person's obligations under this Section 8.18.7, Buyer or any of the Acquired Companies may proceed against it such Person in law or in equity for such damages Damages or other relief as a court may deem appropriate. Seller acknowledges that a violation of this Section 8.1 8.7 may cause Buyer or the Acquired Companies irreparable harm which may not be adequately compensated for by money damages. Seller therefore agrees that in the event of any actual or threatened violation of this Section 8.18.7, Buyer or any of the Acquired Companies shall be entitled, in addition to other remedies that it Buyer or any Acquired Company may have, to a temporary restraining order and to preliminary and final injunctive relief against Seller or such Affiliate of Seller to prevent any violations of this Section 8.18.7, without the necessity of posting a bond. The prevailing party in any action commenced under this Section 8.1 8.7 shall also be entitled to receive reasonable attorneys’ ' fees and court costs.
8.7.4. It is the intent and understanding of each party hereto that if, in any action Proceeding before any court Governmental Body or agency arbitrator legally empowered to enforce this Section 8.18.7, any term, restriction, covenant or promise in this Section 8.1 8.7 is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court Governmental Body or agencyarbitrator.
Appears in 1 contract
Samples: Stock Purchase Agreement (WHX Corp)
Covenant Not to Compete or Solicit Business. (a) In furtherance of the sale of the Purchased Assets and the Business Shares to Buyer hereunder by virtue of the transactions contemplated hereby and more effectively to protect the value and goodwill of the Purchased Assets assets and business of the Business so soldCompany, Seller Sellers covenants and agrees that, for a period ending on the third two (2) year anniversary of the Closing Date, neither Seller Sellers nor any of its Subsidiaries Affiliates will:
(i) market directly or indirectly (whether as principal, agent, independent contractor, partner or otherwise) own, manage, operate, control, participate in, perform services for, or otherwise carry on, a business similar to any health system customer any Software that is or competitive with the Software included in the Business, except as contemplated business conducted by the Reseller Agreement Amendment;Company on the date hereof anywhere in The People’s Republic of China (it being understood by the parties hereto that the business prohibited activities are not limited to any particular region because such business has been conducted by the Company throughout The People’s Republic of China and the prohibited activities may be engaged in effectively from any location in The People’s Republic of China; or
(ii) solicit, induce or attempt to persuade any agentemployee, supplier agent or customer of the Business Company to terminate or reduce or limit such employment, agency or business relationship; orrelationship in order to enter into any such relationship on behalf of any other business organization in competition with the business conducted by the Company on the date hereof;
(iii) hire any employee on Schedule 8.1(A)(iii) or solicit, induce or attempt to persuade or assist any employee of the Business to leave the employment of Buyer or any of its Affiliates; provided, howeverthat nothing set forth in this Section 7.1 shall prohibit Sellers or its Affiliates from owning not in excess of five percent (5%) in the aggregate of any class of capital stock of any corporation if such stock is publicly traded and listed on any national or regional stock exchange.
(b) In addition, that the foregoing restriction shall not prohibit a general solicitation through the media that is not targeted at employees of the Business; Seller also Sellers covenants and agrees that from and after the Closing Date, neither it will not, and will not permit nor any of its Affiliates to, will divulge or make use of any trade secrets or other confidential information of the Business Company other than to disclose such secrets and information to Buyer or its Affiliates.
(bc) If Seller In the event Sellers or any Affiliate of Seller Sellers violates any of its obligations under this Section 8.17.1, Buyer or the Company may proceed against it in law or in equity for such damages or other relief as a court may deem appropriate. Seller acknowledges Sellers acknowledge that a violation of this Section 8.1 7.1 may cause Buyer or the Company irreparable harm which may not be adequately compensated for by money damages. Seller Sellers therefore agrees that in the event of any actual or threatened violation of this Section 8.17.1, Buyer or the Company shall be entitled, in addition to other remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against Seller Sellers or such Affiliate of Seller Sellers to prevent any violations of this Section 8.17.1, without the necessity of posting a bond. The prevailing party in any action commenced under this Section 8.1 7.1 shall also be entitled to receive reasonable attorneys’ fees and court costs. .
(d) It is the intent and understanding of each party hereto that if, in any action before any court or agency legally empowered to enforce this Section 8.17.1, any term, restriction, covenant or promise in this Section 8.1 7.1 is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency.
Appears in 1 contract
Covenant Not to Compete or Solicit Business. (a) In furtherance of the sale of the Purchased Assets and the Business to Buyer hereunder by virtue of the transactions contemplated hereby and more effectively to protect the value and goodwill of the Purchased Assets and the Business so sold, Seller covenants and agrees that, except in conformity with the Sales and Marketing Agreement, the Master Services Agreement or any similar agreements with Buyer that replaces such agreements, for a period commencing on the Closing Date and ending on the third twenty-four month anniversary of the Closing DateDate (the “Restricted Period”), neither Seller none of Seller, Sprint nor any of its Subsidiaries their Affiliates will:
(i) market to any health system customer any Software that is competitive with the Software included directly or indirectly (whether as principal, agent, independent contractor, reseller, partner or otherwise) own, manage, operate, control or otherwise carry on a business engaged in providing Conferencing Services anywhere in the Business, except United States or elsewhere where Seller conducts the Business as contemplated by of the Reseller Agreement Amendment;date hereof; or
(ii) solicit, induce or attempt to persuade any employee, agent, supplier or customer of Buyer with respect to the Business Conferencing Services business of Buyer to terminate or reduce or limit such employment, agency or business relationship; orrelationship in order to enter into or expand any such relationship on behalf of any other business organization engaged in providing Conferencing Services, except as expressly permitted by the Sales and Marketing Agreement.
(b) Notwithstanding the foregoing, nothing in this Section 8.1 shall prevent Seller, Sprint or any of their Affiliates from (and Buyer acknowledges that the following shall not result in a violation of Section 8.1(a)):
(i) owning not in excess of 5% in the aggregate of any class of capital stock of any corporation engaged in providing Conferencing Services in the United States if such stock is publicly traded and listed on any national stock exchange or on the Nasdaq national market;
(ii) offering the services of an alternative third-party provider of Conferencing Services to prospective customers, but only in the event that the Sales and Marketing Agreement is terminated or the exclusivity provision in Article IV thereof is terminated;
(iii) hire any employee on Schedule 8.1(A)(iii) engaging in a Change of Control or solicit, induce thereafter engaging in the Conferencing Services business as a result of or attempt to persuade or assist any employee of the Business to leave the employment of Buyer or any of its Affiliatesarising from such transaction; provided, however, that upon the foregoing restriction occurrence of any Change of Control during the Restricted Period:
(A) Seller shall notify Buyer in writing as soon as practicable (but in no event more than five (5) business days) following the consummation of a Change of Control;
(B) Seller shall use its commercially reasonable efforts to assign to Buyer all Provisional Customer Contracts and to cause the customers that are parties to a Bundled Customer Contract to execute and deliver a Separate Agreement and Release, if such customer has not prohibit a general solicitation through yet done so, as soon as practicable within one year after the media consummation of the Change of Control (assuming the transition of the customer billing functions in accordance with the Transition Services Agreement);
(C) none of Sprint, Seller or its Affiliates shall directly or indirectly solicit (whether as principal, agent, independent contractor, reseller, partner or otherwise) or provide Conferencing Services for any customer that is a party to a Provisional Customer Contract or Bundled Customer Contract that has not targeted at employees yet executed and delivered a Separate Agreement and Release until such Provisional Customer Contract is assigned or such customer executes and delivers a Separate Agreement and Release; provided that for any Provisional Customer Contract that is never assigned or any Bundled Customer Contract for which a Separate Agreement and Release is never executed and delivered, none of the Business; Sprint, Seller also covenants and agrees that from and after the Closing Date, it will not, and will not permit any of or its Affiliates to, divulge or make use (subject to any existing obligations of any trade secrets or other confidential information of the Business other than to disclose such secrets and information to Buyer or its Affiliates.
(b) If Seller or any a Person that becomes an Affiliate of Seller violates any of its obligations under this Section 8.1, Buyer may proceed against it in law or in equity for such damages or other relief as a court result of the Change of Control) shall directly or indirectly solicit (whether as principal, agent, independent contractor, reseller, partner or otherwise) or provide Conferencing Services for the customer that is a party to such contract for a period of one year following the termination or expiration of such contract (or the Conferencing Services portion thereof, if applicable); it being understood that Seller may deem appropriate. offer such customer an agreement with Buyer for the provision of Conferencing Services upon such termination or expiration or during such one year period in accordance with the terms of the Sales and Marketing Agreement (it being understood further that the “Agency Fee” payments to Seller acknowledges pursuant to the Sales and Marketing Agreement shall not apply to such offered contract); it being further understood that, notwithstanding the foregoing, at all times following such transaction, each Person that a violation of this Section 8.1 may cause Buyer irreparable harm which may not be adequately compensated for by money damages. Seller therefore agrees that in the event of any actual or threatened violation of this Section 8.1, Buyer shall be entitled, in addition to other remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against Seller or such becomes an Affiliate of Seller as a result of such transaction shall be permitted to prevent perform or otherwise discharge its contractual or other legal obligations or commitments, whether related to Conferencing Services or otherwise, existing as of the time of the Change of Control; and Seller and its Affiliates shall be permitted to perform or otherwise discharge any violations such contractual or other legal obligations or commitments, whether related to Conferencing Services or otherwise, that were assumed or otherwise incurred by Seller or its Affiliates as a result of this such Change of Control; and
(D) Buyer shall no longer be obligated to make the Customer payments to Seller pursuant to Section 8.13.2 with respect to Net Revenue generated after the Change of Control;
(iv) engaging in a Non-Material Acquisition or thereafter engaging in the Conferencing Services business as a result of or arising from such transaction; provided, without however, that upon the necessity occurrence of posting any Non-Material Acquisition during the Restricted Period:
(A) Seller shall notify Buyer in writing as soon as practicable (but in no event more than five (5) business days) following the consummation of the Non-Material Acquisition;
(B) Seller shall use its commercially reasonable efforts to assign to Buyer all Provisional Customer Contracts and to cause the customers that are parties to a bond. The prevailing Bundled Customer Contract to execute and deliver a Separate Agreement and Release, if such customer has not yet done so, as soon as practicable within one year after the consummation of the Non-Material Acquisition (assuming the transition of the customer billing functions in accordance with the Transition Services Agreement);
(C) none of Sprint, Seller or its Affiliates shall directly or indirectly solicit (whether as principal, agent, independent contractor, reseller, partner or otherwise) or provide Conferencing Services for any customer that is a party to a Provisional Customer Contract or Bundled Customer Contract that has not yet executed and delivered a Separate Agreement and Release until such Provisional Customer Contract is assigned or such customer executes and delivers a Separate Agreement and Release; provided that for any Provisional Customer Contract that is never assigned or any Bundled Customer Contract for which a Separate Agreement and Release is never executed and delivered, none of Sprint, Seller or its Affiliates (subject to any existing obligations of a Person that becomes an Affiliate of Seller as a result of the Non-Material Acquisition) shall directly or indirectly solicit (whether as principal, agent, independent contractor, reseller, partner or otherwise) or provide Conferencing Services for the customer that is a party to such contract for a period of one year following the termination or expiration of such contract (or the Conferencing Services portion thereof, if applicable); it being understood that Seller may offer such customer an agreement with Buyer for the provision of Conferencing Services upon such termination or expiration or during such one year period in accordance with the terms of the Sales and Marketing Agreement (it being understood further that the “Agency Fee” payments to Seller pursuant to the Sales and Marketing Agreement shall not apply to such offered contract); it being further understood that, notwithstanding the foregoing, at all times following such transaction, each Person that becomes an Affiliate of Seller as a result of such transaction shall be permitted to perform or otherwise discharge its contractual or other legal obligations or commitments, whether related to Conferencing Services or otherwise, existing as of the time of the Non-Material Acquisition; and Seller and its Affiliates shall be permitted to perform or otherwise discharge any such contractual or other legal obligations or commitments, whether related to Conferencing Services or otherwise, that were assumed or otherwise incurred by Seller or its Affiliates as a result of such Non-Material Acquisition; and
(D) Buyer shall no longer be obligated to make the Customer payments to Seller pursuant to Section 3.2 with respect to Net Revenue generated after the Non-Material Acquisition;
(v) engaging in a Material Acquisition; provided, however, that upon the occurrence of any Material Acquisition during the Restricted Period:
(A) Seller shall notify Buyer in writing as soon as practicable (but in no event more than five (5) business days) following the consummation of a Material Acquisition;
(B) Seller shall, as soon as practicable, but in any action commenced under this Section 8.1 event within one (1) year after the occurrence of the Material Acquisition, at Seller’s option, either (1) divest the Conferencing Services business acquired by Seller in such transaction (the “Acquired Business”) to a Person not an Affiliate of Seller, or (2) discontinue the operation of the Acquired Business;
(C) During the period pending the divestiture of the Acquired Business as described in subsection 8.1(b)(v)(B), Seller shall also be entitled permitted to receive reasonable attorneys’ fees and court costs. It is continue to operate the intent and understanding Acquired Business in the ordinary course, provided that, during such period, none of each Seller, Sprint nor any of their Affiliates may directly or indirectly solicit any customer that was a party hereto that ifto an Included Customer Contract for Conferencing Services or provide any Conferencing Services to such customers, in any action before any court or agency legally empowered to enforce this Section 8.1, any term, restriction, covenant or promise in this Section 8.1 is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified either case except to the extent necessary required to make it enforceable by perform or otherwise discharge any obligations or commitments to such court customers existing at the time of the Material Acquisition;
(vi) Providing Conferencing Services solely to Seller, Sprint or agencyany of their Affiliates; or
(vii) Consummating the Nextel Merger, and following such transaction, each Person that becomes an Affiliate of Seller as a result of such transaction shall be permitted to perform or otherwise discharge its contractual or other legal obligations or commitments, whether related to Conferencing Services or otherwise, existing as of the time of the Nextel Merger.
Appears in 1 contract
Samples: Asset Purchase Agreement (West Corp)
Covenant Not to Compete or Solicit Business. (a) In furtherance of the sale of the Purchased Assets and the Business Shares to Buyer hereunder by virtue of the transactions contemplated hereby and to more effectively to protect the value and goodwill of the Purchased Assets Company and the Business so soldbeing sold to Buyer, Seller covenants and agrees that, for a period ending on the third fourth anniversary of the Closing Date, neither Seller nor any of its Subsidiaries willAffiliates will directly or indirectly:
(i) market (whether as principal, agent, independent contractor, partner or otherwise) own, manage, operate, control, participate in, perform services for, sell materials to, or otherwise carry on, a business similar to any health system customer any Software that is or competitive with any business or activity of the Software included Company, Buyer or its Affiliates anywhere in the Business, except as contemplated by Restricted Territory whether through any office in the Reseller Agreement AmendmentRestricted Territory or through the activities in the Restricted Territory of representatives or offices that are not in the Restricted Territory;
(ii) solicit, on behalf of itself or others, deposits, loans, brokerage or other business from customers located in the Restricted Territory or conduct any marketing or media campaign therein or targeted at Persons located therein;
(iii) enter into any Contract to, acquire, lease, purchase, own, operate or use any building, office or other facility or premises located in the Restricted Territory for the purpose of making loans, accepting deposits, cashing checks, originating mortgages, or offering brokerage or insurance services; or
(iv) induce or attempt to persuade any employee, agent, supplier or customer (including any borrower or depositor) of the Business Company or the Subsidiary to terminate or reduce or limit such employment, agency or business relationship; or
(iii) hire any employee on Schedule 8.1(A)(iii) or solicit, induce or attempt to persuade or assist any employee of the Business to leave the employment of Buyer or any of its Affiliates; . provided, however, that nothing set forth in this Section 8.1 shall prohibit (x) Seller or its Affiliates from owning not in excess of 5% in the foregoing restriction aggregate of any class of capital stock of any corporation if such stock is publicly traded and listed on any national or regional stock exchange, (y) the acquisition (by asset purchase, stock purchase, merger, consolidation or otherwise) of the stock, business or assets of Seller or any of its Affiliates by any Person that at the time of such acquisition is engaged in the banking business in the Restricted Territory, in each case so long as such Person does not use any of the Company’s brands or any Records or information derived therefrom in soliciting customers and Seller otherwise complies with the provisions of Section 8.1(a); provided, further, that (A) Sections 8.1(a)(i) and 8.1(a)(ii) shall not prohibit a general apply to the solicitation through of or provision of services to any Person located in the media that is not targeted at employees Restricted Special Territory or to existing customers of Seller as of the Business; date of this Agreement, in each case so long as such Person does not use any of the Company’s brands or any Records or information derived therefrom in soliciting customers and Seller otherwise complies with the provisions of Sections 8.1(a)(i) and 8.1(a)(ii). Seller also covenants and agrees that from and after the Closing Date, it will not, and will not permit any of its Affiliates to, divulge or make use of any trade secrets or other confidential information of the Company, the Subsidiary or the Business other than to disclose such secrets and information to Buyer or its AffiliatesAffiliates and (B) Section 8.1(a)(i) shall not prohibit Seller or any of its Affiliates from responding to any unsolicited contact initiated by a customer in the Restricted Territory.
(b) If Seller or any Affiliate of Seller violates any of its obligations under this Section 8.1, Buyer may proceed against it in law or in equity for such damages or other relief as a court may deem appropriate. Seller acknowledges that a violation of this Section 8.1 may cause Buyer irreparable harm which may not be adequately compensated for by money damages. Seller therefore agrees that in the event of any actual or threatened violation of this Section 8.1, Buyer shall be entitled, in addition to other remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against Seller or such Affiliate of Seller to prevent any violations of this Section 8.1, without the necessity of posting a bond. The prevailing party in any action commenced under this Section 8.1 shall also be entitled to receive reasonable attorneys’ fees and court costs. It is the intent and understanding of each party hereto that if, in any action before any court or agency legally empowered to enforce this Section 8.1, any term, restriction, covenant or promise in this Section 8.1 is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency.
Appears in 1 contract
Samples: Stock Purchase Agreement (Citizens Republic Bancorp, Inc.)
Covenant Not to Compete or Solicit Business. (a) In furtherance of the sale of the Purchased Assets and the Business to Buyer hereunder by virtue of the transactions contemplated hereby and more effectively to protect the value and goodwill of the Purchased Assets and the Business so sold, Seller covenants and agrees that, for a period ending on the third anniversary of the Closing Date, neither Seller nor any of its Subsidiaries will:
Affiliates shall directly or indirectly (iwhether as principal, agent, independent contractor, partner or otherwise) market to own, manage, operate, control, participate in, or otherwise carry on, any health system customer any Software that is business competitive with the Software included Business in or outside of the United States (it being understood by the parties hereto that such prohibited activities are not limited to any particular region because such Business has been conducted by Seller throughout and outside the United States and the prohibited activities may be engaged in effectively from any location in or outside of the United States); provided, however, that nothing set forth in this Section 8.1 shall prohibit Seller or its Affiliates from owning not in excess of 5% in the Business, except as contemplated by aggregate of any class of capital stock of any corporation if such stock is publicly traded and listed on any national or regional stock exchange or on the Reseller Agreement Amendment;Nasdaq national market system.
(iib) solicitSeller covenants that neither Seller nor any of its Affiliates will for a period ending on the third anniversary of the Closing Date, induce or attempt to persuade any employee, agent, supplier or customer of the Business to terminate or reduce or limit such employment, agency or business relationship; or
(iii) hire relationship in order to enter into any employee such relationship for, with or on Schedule 8.1(A)(iii) or solicit, induce or attempt to persuade or assist any employee behalf of the Business to leave the employment of Buyer Seller or any of its Affiliates; provided, however, that the foregoing restriction shall not prohibit a general solicitation through the media that is not targeted at employees of Affiliates or to otherwise engage in activities in competition with the Business; .
(c) Seller also covenants and agrees that from and after the Closing Date, neither it will not, and will not permit nor any of its Affiliates to, will divulge or make use of any trade secrets Trade Secrets or other confidential information of the Business related to the Purchased Assets (other than to disclose such secrets and information to Buyer or its Affiliates).
(bd) If In the event Seller or any Affiliate of Seller violates any of its obligations under this Section 8.1, Buyer may proceed against it in law or in equity for such damages or other relief as a court may deem appropriate. Seller acknowledges that a violation of this Section 8.1 may cause Buyer irreparable harm which that may not be adequately compensated for by money damages. Seller therefore agrees that in the event of any actual or threatened violation of this Section 8.1, Buyer shall be entitled, in addition to other remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against Seller or such Affiliate of Seller to prevent any violations of this Section 8.1, without the necessity of posting a bond. The prevailing party in any action commenced under this Section 8.1 shall also be entitled to receive reasonable attorneys’ ' fees and court costs. It is the intent and understanding of each party hereto that if, in any action before any court or agency legally empowered to enforce this Section 8.1, any term, restriction, covenant or promise in this Section 8.1 is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency.
Appears in 1 contract
Samples: Asset Purchase Agreement (Medicalogic/Medscape Inc)
Covenant Not to Compete or Solicit Business. (a) In furtherance of the sale of the Purchased Assets and the Business to Buyer Purchaser hereunder by virtue of the transactions contemplated hereby and more effectively to protect the value and goodwill of the Purchased Assets and the Business so sold, Seller covenants Sellers hereby jointly and agrees severally covenant and agree that, for a period ending on the third second anniversary of the Closing Date, neither Seller nor any of its Subsidiaries willtheir respective Affiliates will :
(i) market directly or indirectly (whether as principal, agent, independent contractor, partner or otherwise) own, manage, operate, control, participate in, perform services for, or otherwise carry on, any Competitive Business anywhere in the world (it being understood by the parties hereto that the Business is not limited to any health system customer particular region of world and that the Business may be engaged in effectively from any Software that is competitive with the Software included location in the Business, except as contemplated by the Reseller Agreement Amendmentworld);
(ii) solicit, induce or attempt to persuade any distributor, agent, supplier or customer of the Business to terminate or reduce or limit such distributor, agency or business relationship; or
(iii) hire relationship in order to enter into any employee such relationship on Schedule 8.1(A)(iii) or solicit, induce or attempt to persuade or assist behalf of any employee of other business organization in competition with the Business to leave the employment of Buyer or any of its AffiliatesBusiness; provided, however, that nothing set forth in this Section 7.1 shall prohibit Sellers or their Affiliates from owning not in excess of 5% in the foregoing restriction shall not prohibit a general solicitation through aggregate of any class of capital stock of any corporation if such stock is publicly traded and listed on any national or regional stock exchange or on the media that is not targeted at employees of the Business; Seller Nasdaq national market. Sellers also covenants jointly and agrees severally covenant and agree that from and after the Closing DateDate neither of them will, it nor will not, and will not permit any of its respective Affiliates to, divulge or make use of any trade secrets or other confidential information of the Business other than to disclose such secrets and information to Buyer Purchaser or its Affiliates.
(b) If either Seller or any Affiliate of either Seller violates any of its obligations under this Section 8.17.1, Buyer Purchaser may proceed against it in law or in equity for such damages or other relief as a court may deem appropriate. Seller acknowledges Sellers acknowledge that a violation of this Section 8.1 7.1 may cause Buyer Purchaser irreparable harm which may not be adequately compensated for by money damages. Seller Sellers therefore agrees agree that in the event of any actual or threatened violation of this Section 8.17.1, Buyer Purchaser shall be entitled, in addition to other remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against such Seller or such Affiliate of Seller Sellers to prevent any violations of this Section 8.17.1, without the necessity of posting a bond. The prevailing party in any action commenced under this Section 8.1 7.1 shall also be entitled to receive reasonable attorneys’ fees and court costs. It is the intent and understanding of each party hereto that if, in any action before any court or agency legally empowered to enforce this Section 8.17.1, any term, restriction, covenant or promise in this Section 8.1 7.1 is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency.
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Covenant Not to Compete or Solicit Business. (a) In furtherance of the sale of the Purchased Assets and the Business to Buyer hereunder by virtue of the transactions contemplated hereby Purchaser and more effectively to protect the value and goodwill of the Purchased Assets Business and in consideration of the Business so soldPurchaser Price, Seller covenants Covenants and agrees that, after the Closing:
(i) for a period ending on the third anniversary of the Closing Date, neither Seller nor any of Seller's subsidiaries, so long as they remain subsidiaries, will (whether as principal, agent, independent contract, partner or otherwise) own, manage , operate, control, participate in, or otherwise carry on, a business that produces and/or sells flexible packaging materials in North America ("Compete") excluding, however, manufacture, sale and distribution of products of the same type and for the same markets as are being manufactured in its Subsidiaries will:
(i) market to any health system customer any Software that is competitive with plants in North Portland, Oregon, and Malvern, Pennsylvania on the Software included date of this Agreement. Nothing in this Section 6.10 shall prohibit Seller or Seller's subsidiaries from owning not in excess of 5% in the Business, except as contemplated by aggregate of any class of capital stock of any corporation if such stock is publicly traded and listed on any national or regional stock exchange or on the Reseller Agreement Amendment;Nasdaq national market system; and
(ii) solicitfor a period ending on the third anniversary of the Closing Date, neither Seller nor any of Seller's subsidiaries will induce or attempt to persuade any agent, supplier or customer of the Business to terminate or reduce or limit alter in any material and adverse respect such agency or business relationship; or
(iii) hire any employee on Schedule 8.1(A)(iii) or solicitrelationship with Purchaser, induce or attempt except that Seller may market folding cartons to persuade or assist any employee of the Business to leave the employment of Buyer or any of its Affiliates; provided, however, that the foregoing restriction shall not prohibit a general solicitation through the media that is not targeted at employees of the Business; Seller also covenants and agrees that from and after the Closing Date, it will not, and will not permit any of its Affiliates to, divulge or make use of any trade secrets or other confidential information of the Business other than to disclose such secrets and information to Buyer or its Affiliatescustomers.
(b) If In the event Seller or any Affiliate of Seller its subsidiaries violates any of its such Person's obligations under this Section 8.16.10, Buyer Purchaser may proceed against it such Person in law or in equity for such damages damage or other relief as a court may deem appropriate. Seller acknowledges that a violation of this Section 8.1 6.10 may cause Buyer Purchaser irreparable harm which may not be adequately compensated for by money damages. Seller therefore agrees that in the event of any actual or threatened violation of this Section 8.16.10, Buyer Purchaser shall be entitled, in addition to other remedies that it may have, to seek a temporary restraining order and to preliminary and final injunctive relief against Seller or such Affiliate of Seller its Subsidiaries to prevent any violations of this Section 8.16.10, without the necessity of posting a bond. The prevailing party in any action commenced under this Section 8.1 6.10 shall also be entitled to receive reasonable attorneys’ ' fees and court costs. .
(c) It is the intent and understanding of each party hereto that if, in any action Proceeding before any court governmental entity or agency arbitrator legally empowered to enforce this Section 8.16.10, any term, restriction, covenant or promise in this Section 8.1 6.10 is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agencygovernmental entity.
Appears in 1 contract
Covenant Not to Compete or Solicit Business. (a) In furtherance of the sale of the Purchased Assets and the Business to Buyer hereunder by virtue of the transactions contemplated hereby and more effectively to protect the value and goodwill of such Purchased Assets, the Purchased Assets ACME Entities covenant and the Business so sold, Seller covenants and agrees agree that, for a period ending on :
(i) until the third anniversary of the Closing Date, neither Seller the ACME Entities nor any of its Subsidiaries their Affiliates will:
, directly or indirectly (iwhether as principal, agent, independent contractor, partner or otherwise) market own, manage, operate, control, provide consulting or management services for, or otherwise carry on, a television broadcast station similar to any health system customer any Software that is or competitive with the Software included in Business as conducted by Sellers as of the Closing Date (a "Competitive Business") anywhere within the Portland, except Oregon Designated Market Area (as contemplated defined by the Reseller Agreement Amendment;Nielsen Media Research, Inc.); or
(ii) solicitxxxxx xhe first anniversary of the Closing Date, neither the ACME Entities nor any of their Affiliates will induce or attempt to persuade any agentcurrent employee, supplier agent or customer of the Business to terminate or reduce or limit such employment, agency or business relationship; or
(iii) hire relationship in order to enter into any employee such relationship on Schedule 8.1(A)(iii) or solicit, induce or attempt to persuade or assist behalf of any employee of the Business to leave the employment of Buyer or any of its AffiliatesCompetitive Business; provided, however, that nothing set forth in this Section 7.5 shall prohibit the foregoing restriction shall not prohibit a general solicitation through the media that is not targeted at employees of the Business; Seller also covenants and agrees that from and after the Closing Date, it will not, and will not permit ACME Entities or any of its their Affiliates tofrom owning not in excess of 5% in the aggregate of any class of capital stock of any corporation if such stock is publicly traded and listed on any national or regional stock exchange or included on the NASDAQ market system or similar system. In addition, the ACME Entities covenant and agree that neither they nor any of their Affiliates will divulge or make use of any trade secrets or other confidential information of the Business existing as of the Closing Date other than to disclose such secrets and information to Buyer or its Affiliates.
(b) If Seller , except as required by applicable law or regulation or by legal process. In the event the ACME Entities or any Affiliate of Seller violates their Affiliates violate any of its their obligations under this Section 8.17.5, Buyer may proceed against it them in law or in equity for such damages or other relief as a court may deem appropriate. Seller acknowledges The ACME Entities acknowledge that a violation of this Section 8.1 7.5 may cause Buyer irreparable harm which may not be adequately compensated for by money damages. Seller The ACME Entities therefore agrees agree that in the event of any actual or threatened violation of this Section 8.17.5, Buyer shall be entitled, in addition to other remedies that it may have, to a temporary restraining order and to preliminary and final injunctive relief against Seller the ACME Entities or such Affiliate of Seller the ACME Entities to prevent any violations of this Section 8.17.5, without the necessity of posting a bond. The prevailing party in any action commenced under this Section 8.1 shall also be entitled to receive reasonable attorneys’ fees and court costs. It is the intent and understanding of each party hereto that if, in any action before any court or agency legally empowered to enforce this Section 8.17.5, any term, restriction, covenant or promise in this Section 8.1 7.5 is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency.
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