Common use of Duties of Distributor Clause in Contracts

Duties of Distributor. DISTRIBUTOR covenants and agrees to do each of the following: (i) DISTRIBUTOR shall use commercially reasonable efforts to promote and sell the Products in the Territory; (ii) DISTRIBUTOR shall send one person from its sales and marketing organization to COMPANY for training prior to the First Commercial Sale of the Products in the Territory for a period of time mutually agreed upon by the Parties; (iii) DISTRIBUTOR shall maintain a commercially reasonable stock of the Products in order to promote the Products in the Territory; (iv) DISTRIBUTOR shall exhibit Products at industry meetings in the Territory; (v) DISTRIBUTOR shall create and develop a training program for end-user physician customers in the Territory in cooperation with COMPANY; DISTRIBUTOR shall not sell Products to any end-users who have not been trained in the use of the Products. (vi) DISTRIBUTOR shall confer with COMPANY, from time to time, upon the written request of COMPANY, on matters relating to the marketing and promotion of the Products in the Territory; (vii) DISTRIBUTOR shall keep COMPANY informed regarding regulatory requirements in the Territory and shall, from time to time, provide COMPANY with updated amendments to Schedule 2 attached hereto; [*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. (viii) DISTRIBUTOR shall not solicit the sale of, promote the sale of, sell, exhibit for sale, distribute or manufacture any Competing Products in the Territory; (ix) DISTRIBUTOR shall translate Product literature into the Japanese language when necessary; and (x) during the term of this Agreement, and for a period of [*] years from the expiration or termination of this Agreement, DISTRIBUTOR, its affiliates, successors and assigns shall not directly solicit or indirectly solicit for employment or hire in any capacity any personnel employed by COMPANY or any affiliate of COMPANY.

Duties of Distributor. DISTRIBUTOR covenants (a) Distributor accepts the foregoing appointment and agrees to do each provide all of the usual and customary services of a distributor in the Territory, which shall include, without limitation, the following: (i) DISTRIBUTOR Distributor shall use commercially all reasonable efforts to promote distribute and sell and diligently promote the Products Product in the Territory;. In this regard, Distributor shall provide and maintain an aggressive and efficient sales organization adequate for the needs of the Territory. (ii) DISTRIBUTOR shall send one person from its sales Distributor agrees to sell and marketing organization to COMPANY for training prior to the First Commercial Sale of the Products distribute Product in the Territory for a period of time mutually agreed upon by the Parties;professional and responsible manner. (iii) DISTRIBUTOR shall maintain a commercially reasonable stock of the Products in order Distributor agrees not to promote the Products in the Territory;knowingly sell and distribute counterfeit Company products or Product which has been misbranded or adulterated or which is otherwise illicit. (iv) DISTRIBUTOR shall exhibit Products Distributor agrees to include the Product at industry meetings frequent intervals in lists, bulletins or catalogs, as they may be issued by Distributor to its customers, and agrees to check such customers' supplies of Product regularly to insure adequate stocking and that the Territory;Product is in saleable condition. (v) DISTRIBUTOR shall create and develop a training program for end-user physician Distributor agrees not to sell the Product outside the Territory or knowingly sell the Product to customers in the Territory in cooperation with COMPANY; DISTRIBUTOR shall not sell Products intending to any end-users or who have not been trained in do resell outside the use of the ProductsTerritory. (vi) DISTRIBUTOR shall confer Distributor agrees to store and ship the Product strictly in accordance with COMPANY, from time to time, upon the written request of COMPANY, on matters relating to the marketing specifications in Exhibit A ("Specifications") and promotion of the Products in the Territory;Company's instructions and as otherwise required by law. (vii) DISTRIBUTOR shall keep COMPANY informed regarding regulatory requirements Distributor agrees not to make any warranty, guarantee, claim or representation in connection with the Territory and shallProduct, from time unless authorized by Company or contained in written materials forwarded by Company to time, provide COMPANY with updated amendments to Schedule 2 attached hereto; [*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONSDistributor. (viii) DISTRIBUTOR shall not solicit Distributor agrees to keep Company periodically and regularly apprised of the sale of, promote state of the sale of, sell, exhibit market for sale, distribute or manufacture any Competing Products the Product in the Territory;. (ix) DISTRIBUTOR Distributor shall translate promptly forward to Company any known Product literature into the Japanese language when necessary; andrelated complaints (whether of a medical nature, including adverse reactions and events, or product quality nature) and will assist Company in resolving such complaints. (xb) Nothing contained in this Agreement shall be construed to restrict Company's right, in its sole discretion, to discontinue manufacturing (or having the Product manufactured on its behalf) or distributing the Product within the Territory at any time, immediately upon prior written notice to Distributor if in Company's reasonable scientific or medical judgment (based upon medical or scientific reasons or on information or circumstances not known or existing as of the date hereof by Company's senior medical officer), further sale of the Product in the Territory is not advisable. (c) Distributor warrants and agrees that it is not now selling and will not during the term of this Agreement, and for hereof sell in the Territory any goods directly competitive with the Product. "Directly competitive" means a period of [*] years from the expiration or termination of this Agreement, DISTRIBUTOR, its affiliates, successors and assigns shall not directly solicit or indirectly solicit for employment or hire in any capacity any personnel employed by COMPANY or any affiliate of COMPANYfluroquinolone product.

Duties of Distributor. DISTRIBUTOR covenants and 5.1 Distributor agrees to do each maintain a suitable place or places of business with adequate facilities for the sale and servicing of the following:Products. Such facilities shall be staffed by qualified personnel and shall remain open to customers during business hours customary in the trade and in the Territory. Distributor shall allow Hach's representatives at any reasonable time to examine Distributor's place of business and inventories and to test Distributor's equipment and facilities so as to verify Distributor's compliance with this Agreement. (i) DISTRIBUTOR shall use commercially reasonable 5.2 Distributor will maintain a qualified sales organization which will call on such customers and potential customers in the Territory as may be reasonably likely to purchase any of the Products. Distributor's sales personnel will participate in such Hach sales training programs as Hach may conduct at Distributor's expense, and Distributor will conduct internal training designed to ensure the development and implementation of effective sales methods applicable to the Products. 5.3 Distributor agrees to exert its best efforts to promote and sell the Products in the Territory; (ii) DISTRIBUTOR shall send one person from its Territory and to provide competent post-sales and marketing organization to COMPANY servicing for training prior to the First Commercial Sale of the all Products located in the Territory for a period regardless of time mutually agreed upon whether or not sold by the Parties;Distributor. (iii) DISTRIBUTOR 5.4 Distributor shall maintain a commercially reasonable stock of the Products in order at all times employ adequate technically trained and experienced personnel. Distributor shall be encouraged to promote the Products service and repair Hach equipment in the Territory;. In the event Distributor performs such service, it shall do so in accordance with Hach's current service and repair policy and procedures and shall maintain an adequate supply of spare parts to assure timely service. (iv) DISTRIBUTOR shall exhibit Products at industry meetings in 5.5 Distributor agrees to consult with Hach before making any arrangements during the Territory; (v) DISTRIBUTOR shall create and develop a training program for end-user physician customers in the Territory in cooperation term of this Agreement to sell or handle product lines which conflict or compete with COMPANY; DISTRIBUTOR shall not sell Products to any end-users who have not been trained in the use of the Products. (vi) DISTRIBUTOR shall confer with COMPANY5.6 Distributor agrees to inform Hach in writing of all products or companies other than Hach Products or Hach Company, which or from time to time, upon the written request of COMPANY, on matters relating to the marketing and promotion of the Products in the Territory; (vii) DISTRIBUTOR shall keep COMPANY informed regarding regulatory requirements in the Territory and shall, from time to time, provide COMPANY with updated amendments to Schedule 2 attached hereto; [*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. (viii) DISTRIBUTOR shall not solicit the sale of, promote the sale of, sell, exhibit whom Distributor purchases products for sale, distribute resale or manufacture any Competing Products in the Territory; (ix) DISTRIBUTOR shall translate Product literature into the Japanese language when necessary; and (x) otherwise represents during the term of this Agreement. 5.7 Hach may request and Distributor shall promptly provide information about its end-user customers including, without limitation, the customer name, the contact name, the customer address, the ship-to address and the billing address. 5.8 Distributor shall provide its Customer Price List or factor applied for developing Customer Price List to Hach within ninety (90) days of the contract date. Distributor shall provide Hach a revised Customer Price List or factor applied for developing Customer Price List at any time Distributor makes a material change thereto or at Hach's request. 5.9 From time to time Hach may disclose certain proprietary information, such as, without limitation, information related to the sales, marketing, performance, composition, manufacture and development of Products ("Confidential Information"). Such Confidential Information may be disclosed in oral, written, electronic or other form. During the term of this Agreement and for a period of [*] five (5) years from the expiration or following termination of this Agreement, DISTRIBUTORfor whatever reason, Distributor agrees that it will not: (a) use such confidential Information for any purpose directly or indirectly detrimental to Hach or Hach's interest or ownership in such Confidential Information, (b) disclose Confidential Information to any persons who are not employees, agents or representatives of Distributor without prior, written approval for such disclosure from Hach, (c) disclose Confidential Information only to such employees, agents or representatives of Distributor who have a legitimate need to know, who understand the confidential nature of the Confidential Information, and from whom Distributor has obtained a written agreement of nondisclosure. Distributor further agrees that failure to protect Hach's Confidential Information in any way shall be considered a material breach of this Agreement. 5.10 Upon termination of this Agreement for whatever reason, or at any time Hach so requests, Distributor shall, within ten (10) days of such termination or request, return to Hach all confidential Information including without limitation, all copies, summaries, analyses or extracts thereof, then in possession of Distributor or any of its affiliatesemployees, successors agents or representatives. 5.11 Distributor agrees to keep at all times during the term of this Agreement an adequate inventory of Product as reasonably required to meet the Sales Forecast for the Territory. Distributor shall execute such Sales Forecast promptly upon signing this Agreement or at the start of Hach's fiscal year as mutually agreed upon. In the event said Sales Forecast is not executed before the first day of the third month following the Contract Date of this Agreement, Hach may terminate this Agreement with thirty (30) days written notice to Distributor. 5.11.1 An Annual Sales Forecast(s) will be provided by Distributor to Hach in such form as Hach may request by September 30th of each of each year of this Agreement 5.12 Distributor shall furnish an Annual Sales and assigns Operations Report ("Report") to Hach, This Report is due on February 28th of each year. The Report shall contain accurate information as to sales, customer demand, customer reactions, activities of competitors, information on political and economic developments that could affect in any way the financial condition of the Distributor and/or the ability of Distributor to promote and sell the Products in the Territory and such other information as Hach may reasonably request, including information on the financial condition of Distributor. 5.13 Distributor shall provide such information as is required by Hach to assure compliance with the export, re-export, import or licensing laws of the U.S. or other jurisdiction, or such other regulations or laws as may be applicable hereto or thereto (the "Requirements"). The Requirements are appended hereto as Exhibit E, Requirements for Export or Import of Products, and may be amended from time to time at Hach's sole discretion. 5.14 Distributor shall maintain records of all sales and keep them on file for six (6) years. Distributor shall allow Hach's employees or agents to examine such records at any reasonable time. Distributor agrees that all customers or potential customers for the Products have been developed and created solely for the benefit of Hach, and any list of customers or potential customers for the Products shall be deemed to be the property of Hach. 5.15 Distributor shall assist Hach in obtaining information regarding the financial stability and credit history of any customer or prospective customer with respect to which Distributor forwards an order directly to Hach for acceptance in return for a sales commissions, as provided herein. 5.16 Distributor shall not directly solicit sell or indirectly solicit for employment ship Products from the Territory to other jurisdictions if such sale or hire in any capacity any personnel employed shipment is prohibited by COMPANY the government of the United States of America or any affiliate the government of COMPANYthe Territory or the government of the receiving entity. 5.17 Distributor shall not advertise or market, attempt to advertise or market, sell or attempt to sell Products outside the Territory via the Internet, on the World Wide Web, or by other electronic means.

Duties of Distributor. DISTRIBUTOR covenants (a) Distributor accepts the foregoing appointment and agrees to do each provide all of the usual and customary services of a distributor in the Territory, which shall include, without limitation, the following: (i) DISTRIBUTOR Distributor shall use commercially all reasonable efforts to promote distribute and sell and diligently promote the Products Product in the Territory;. In this regard, Distributor shall provide and maintain a sales organization adequate to meet the needs of the market in the Territory. Nothing in this Agreement shall be construed as requiring Distributor to maintain a sale organization outside the United States of America. (ii) DISTRIBUTOR shall send one person from its sales Distributor agrees not to sell and marketing organization to COMPANY for training prior to the First Commercial Sale of the Products in the Territory for a period of time mutually agreed upon by the Parties;distribute knowingly counterfeit Company products or Product which has been misbranded or adulterated or which is otherwise illicit. (iii) DISTRIBUTOR shall maintain a commercially reasonable stock Distributor agrees to include the Product at frequent intervals in lists, bulletins or catalogs, as they may be issued by Distributor to its customers, and agrees to check such customers' supplies of Product regularly to insure adequate stocking and that the Products Product is in order to promote the Products in the Territory;saleable condition. (iv) DISTRIBUTOR shall exhibit Products at industry meetings Distributor agrees not to sell the Product outside the Territory or knowingly sell the Product to customers in the Territory which intend to or who resell outside the Territory;. (v) DISTRIBUTOR shall create Distributor agrees to store and develop a training program for end-user physician customers ship the Product strictly in accordance with the Territory specifications in cooperation with COMPANY; DISTRIBUTOR shall not sell Products to any end-users who have not been trained in the use of the ProductsExhibit B ("Specifications") and Company's instructions and as otherwise required by law. (vi) DISTRIBUTOR shall confer Distributor agrees not to make any warranty, guarantee, claim or representation in connection with COMPANYthe Product, from time unless authorized by Company or contained in written materials forwarded by Company to time, upon the written request of COMPANY, on matters relating to the marketing and promotion of the Products in the Territory;Distributor. (vii) DISTRIBUTOR Distributor shall keep COMPANY informed regarding regulatory requirements promptly provide Company with copies of any known Product related complaints of a medical nature, including adverse reaction and events, or product quality nature. (b) Nothing contained in this Agreement shall be construed to restrict Company's right, in its sole discretion, after discussion with Distributor, to discontinue manufacturing (or having the Product manufactured on its behalf) or having the Product distributed within the Territory at any time, immediately upon prior written notice to Distributor if in Company's reasonable scientific or medical judgment (based upon medical or scientific reasons or on information or circumstances not known or existing as of the date hereof by Company's senior medical officer), further sale of the Product in the Territory and shall, from time to time, provide COMPANY with updated amendments to Schedule 2 attached hereto; [*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONSis not advisable. (viiic) DISTRIBUTOR shall Distributor represents and warrants that it is not solicit the sale of, promote the sale of, sell, exhibit for sale, distribute or manufacture any Competing Products in the Territory; (ix) DISTRIBUTOR shall translate Product literature into the Japanese language when necessary; and (x) now selling and will not during the term of hereof sell in the Territory any products directly competitive with the Product. As used in this AgreementSection 2(c), "directly competitive" means a magnesium supplement product. (d) Company represents and warrants that it will not during the term hereof, and for a period of [*] two (2) years from after the expiration or earlier termination of this AgreementAgreement other than termination by Company under Section 10(b), DISTRIBUTORsell in the Territory any products directly competitive with the Product. As used in this Section 2(d), its affiliates, successors and assigns "directly competitive" means a magnesium supplement product. Nothing in this Section 2(d) shall not directly solicit or indirectly solicit for employment or hire in any capacity any personnel employed by COMPANY way restrict or preclude Company or any affiliate of COMPANYits Affiliates from acquiring another company, business or line of products (including by license thereof or through investment therein), a non- material portion of which includes such magnesium supplement pharmaceutical product. "Non-material" for purposes of this Section 2(d) means that such magnesium supplement product accounts at the time of purchase for less than ten per cent (10%) of the gross sales in the Territory of all products included in the acquired company, business or line of products. If Company acquires any company, line of products or business with products as in (i) above, Company agrees to negotiate with Distributor, as applicable, toward a possible sale of such products to Distributor in the Territory.

Duties of Distributor. DISTRIBUTOR covenants and agrees to do each fulfill the following responsibilities hereunder: (a) Use its best efforts to promote, market, distribute, sell and supply the Products in the Territory in compliance with this Agreement; (b) Promote the sale of the following:Products by engaging in advertising, promotional and public relations activities intended to maximize consumer awareness of, interest in and demand for the Products; (c) Utilize its best efforts to meet demand for Products by maintaining inventory adequate to ship Products for sale within 24 hours after receipt of an order therefor; (d) Cooperate with MANUFACTURER to provide MANUFACTURER with relevant and appropriate information to prepare labels to be used in the packaging of the Products to be delivered to DISTRIBUTOR; (e) Appoint and support qualified Dealers in the territory; (f) Keep adequate records of Product sales by DISTRIBUTOR and its Dealers with regard to traceability, making such records available for inspection, and such other data as MANUFACTURER may reasonably request from time to time; (g) Provide methods and means of handling, storing, and delivering product that prevent damage or deterioration; (h) Employ and maintain an adequate number of experienced sales and marketing personnel; (i) Train Customers and surgeons using the Product, either through MANUFACTURER or a trainer certified by MANUFACTURER, in accordance with the standards and guidelines provided and updated from time to time by MANUFACTURER in writing, as MANUFACTURER shall determine in its sole discretion, as necessary to ensure expertise regarding the Products; (j) Require all sales and marketing personnel, and Dealers and their respective sales and marketing personnel, to participate in the training programs conducted by MANUFACTURER pursuant to Section 2.8 hereof; (k) Advise MANUFACTURER immediately of any disputes between DISTRIBUTOR shall use commercially reasonable efforts and any Customer or Dealer, and any legal notices or actions relating to promote the Products or this Agreement; and (l) Advise MANUFACTURER of all material laws, rules and sell regulations of the Territory, including any new interpretations thereof, relating to importing, promoting, marketing, distributing and selling the Products in the Territory; (ii) DISTRIBUTOR shall send one person from its sales and marketing organization to COMPANY for training prior to the First Commercial Sale of the Products in the Territory for a period of time mutually agreed upon by the Parties; (iii) DISTRIBUTOR shall maintain a commercially reasonable stock of the Products in order to promote the Products in the Territory; (iv) DISTRIBUTOR shall exhibit Products at industry meetings in the Territory; (v) DISTRIBUTOR shall create and develop a training program for end-user physician customers in the Territory in cooperation with COMPANY; DISTRIBUTOR shall not sell Products to any end-users who have not been trained in the use of the Products. (vi) DISTRIBUTOR shall confer with COMPANY, from time to time, upon the written request of COMPANY, on matters relating to the marketing and promotion of the Products in the Territory; (vii) DISTRIBUTOR shall keep COMPANY informed regarding regulatory requirements in the Territory and shall, from time to time, provide COMPANY with updated amendments to Schedule 2 attached hereto; [*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. (viii) DISTRIBUTOR shall not solicit the sale of, promote the sale of, sell, exhibit for sale, distribute or manufacture any Competing Products in the Territory; (ix) DISTRIBUTOR shall translate Product literature into the Japanese language when necessary; and (x) during the term of this Agreement, and for a period of [*] years from the expiration or termination of this Agreement, DISTRIBUTOR, its affiliates, successors and assigns shall not directly solicit or indirectly solicit for employment or hire in any capacity any personnel employed by COMPANY or any affiliate of COMPANY.

Duties of Distributor. DISTRIBUTOR covenants (a) Distributor will use its good faith best efforts to promote the sale of each Device and, in connection therewith, will conduct what it believes to be appropriate advertising of such Device. Distributor will bear the cost of such advertising, and will prepare, at its expense, sales brochures and other relevant literature from information and materials, which shall be made available by Genemed. Distributor will exhibit each Device at exhibitions and trade shows as the Distributor, in; its sole discretion, may deem appropriate. Distributor will use Genemed's trademarks and trade names in promoting and selling the Devices (b) Except for sales of Devices pursuant to this Agreement, Distributor agrees that during the Term of Distributor's appointment hereunder, it will not distribute or sell any other system that is directly in competition with the Genestone systems. (c) Distributor will deliver to do each Genemed, within 45 days of the followingend of each calendar quarter, a report setting forth: (i) DISTRIBUTOR shall use commercially reasonable efforts to promote and sell the Products total sales of each Device in the Territory;preceding quarter. (ii) DISTRIBUTOR shall send one person from estimated sales for each Device in the next quarter; (iii) a summary of Distributor's views as to current market conditions for each Device and for its sales and marketing organization to COMPANY for training prior competition; and (iv) such other information as Genemed may reasonably request. (d) Distributor will market the Device at a minimum aggregate number of twelve (12) exhibits, trade shows and/or medical product conferences per twelve-month period. (e) Distributor will follow technical instructions provided by Genemed with respect to the First Commercial Sale installation, use and care of each Device and will promptly advise Genemed if Distributor becomes aware of any matters adversely affecting the Products use of a Device. (f) Distributor will, in all correspondence and dealings relating to the sale of any Device clearly indicate that it is acting as principal, and at no time will Distributor have any power or authority to assume any obligation of any kind implied or express on behalf of Genemed. (g) Distributor will endeavor to keep Genemed informed as to matters which it believes are likely to be of interest to Genemed with respect to market conditions in the Territory for a period of time mutually agreed upon Device, including information, recommendations or opinions expressed by the Parties; (iii) DISTRIBUTOR shall maintain a commercially reasonable stock customers of the Products in order Distributor relating to promote the Products in the Territory; (iv) DISTRIBUTOR shall exhibit Products at industry meetings in the Territory; (v) DISTRIBUTOR shall create and develop a training program for end-user physician customers in the Territory in cooperation with COMPANYDevice's performance. Distributor will also promptly advise Genemed of; DISTRIBUTOR shall not sell Products to any end-users who have not been trained in the improper or wrongful use of Genemed's trademarks or other intellectual property rights that may come to the Productsattention of Distributor and will assist Genemed, at Genemed's request and expense, in taking steps to defend the rights of Genemed. (vih) DISTRIBUTOR Upon the termination of its appointment hereunder the Distributor shall confer with COMPANY, return to Genemed all documents received from time to time, upon the written request of COMPANY, on matters Genemed and relating to the marketing Devices, and promotion all copies thereof except for those documents the Distributor is required to retain by law or normal accounting practices. The Distributor shall require that each of the Products in the Territory; (vii) DISTRIBUTOR shall keep COMPANY informed regarding regulatory requirements in its sub-distributors throughout the Territory and shall, from time agree to time, provide COMPANY with updated amendments to Schedule 2 attached hereto; [*] = CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSIONdo likewise upon their appointment ceasing. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. (viii) DISTRIBUTOR The Distributor shall not solicit maintain in strict confidence through the sale of, promote the sale of, sell, exhibit for sale, distribute or manufacture any Competing Products in the Territory; (ix) DISTRIBUTOR shall translate Product literature into the Japanese language when necessary; and (x) during the term of this Agreement, Term and for a period of [*] two years from thereafter all information concerning Genemed and the expiration or termination Devices which is not public knowledge and shall require that is sub- distributors agree to do likewise at the time of this Agreement, DISTRIBUTOR, its affiliates, successors and assigns shall not directly solicit or indirectly solicit for employment or hire in any capacity any personnel employed by COMPANY or any affiliate of COMPANYtheir appointment.