Common use of Non-Competition, Non-Solicitation and Non-Disclosure Clause in Contracts

Non-Competition, Non-Solicitation and Non-Disclosure. (a) For a period of five (5) years from the Closing Date, except as permitted in this Section 6.9, neither Seller nor any of its affiliates shall directly or indirectly (i) process, produce or manufacture (in each case, whether directly or indirectly or through co-packers and whether independently or with co-packers) value-added produce items, including packaged salads, salad kits, specialty salads, fresh-cut vegetables and fresh-cut fruit for sale through any outlets, including grocery stores, supercenters or other outlets in the retail distribution channel and quick-service restaurant and other food service outlets, (ii) sell or provide equipment, processes or material for freshness extending atmosphere systems or (iii) own any interest in any business or Person engaged in any of the foregoing activities under clauses (i) or (ii) above. The restrictions set forth in this Section 6.9 shall not be construed to prohibit or restrict: (A) any minority equity investment by Seller or any of its affiliates in any person or entity in which Seller or its affiliates do not have the right to designate a controlling number of members of the board of directors (or similar governing body) of such entity, or in which Seller or its affiliates collectively hold not more than 10% of the outstanding voting securities; (B) the sale of produce items purchased by Seller from third parties on an arm's-length basis (including produce which has been processed) exclusively for resale (and not subject to further processing) to its foodservice customers; (C) any business activity that would otherwise violate this Section 6.9 that is carried on by an entity or business that is acquired by Seller or otherwise becomes an affiliate thereof, but only if, at the time of such acquisition, the revenues derived from such business by such entity or business constitute less than 10% of the gross revenues of such person or business; or (D) Seller's engaging in its foodservice distribution business as currently conducted. For a period of three (3) years from the Closing Date, neither Seller nor any of its affiliates will, without the prior written consent of Purchaser, solicit any Person listed in Section 6.9(a) of the Disclosure Schedule to terminate such Person's customer relationship with the Companies or the Subsidiaries or enter into a relationship or arrangement with a different company or business engaged in the produce processing business with respect to any value-added produce item currently supplied, or contemplated to be supplied (as set forth in Section 6.9(a) of the Disclosure Schedule), by the Companies or the Subsidiaries. (b) Except as set forth in Section 6.9(b) of the Disclosure Schedule, for a period of two (2) years from the Closing Date, neither Seller nor any of its affiliates will, without the prior written consent of Purchaser, employ any officer or managerial employee of the Companies or their Subsidiaries, unless such person has ceased to be an officer or managerial employee for at least six (6) months; provided, however, that the foregoing shall not prohibit any general solicitations of employment not directed to employees of the Companies or their Subsidiaries (including the placing of an advertisement or solicitation through an employment agency or executive search firm (provided that such employment agency or executive search firm is not directed, encouraged or advised by Seller or its affiliates to approach such officer or managerial employee) or prevent Seller or its affiliates from hiring any such person or any person who contacts Seller on his or her own initiative. (c) Seller agrees to treat any information in its possession concerning the Companies and their Subsidiaries (whether prepared by the Seller, its advisors or otherwise) based on, containing or otherwise reflecting such information, including any notes, memoranda, analyses, compilations, studies or other documents (herein collectively referred to as the "Confidential Material") in accordance with the provisions of this clause (c) and to take or abstain from taking certain other actions herein set forth. The term "Confidential Material" does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by Seller or its directors, officers, employees, agents, advisors, affiliates or representatives (including, without limitation, accountants, investment bankers and attorneys (such persons being collectively called "Representatives") in violation of this Agreement or (ii) becomes available to Seller on a non-confidential basis from a source other than Purchaser or its advisors, provided that such source is not, to Seller's knowledge after reasonable inquiry, bound by a confidentiality agreement with or other obligation of secrecy to Purchaser or another party. Seller hereby agrees that, except for such disclosures thereof as may be required by Law, the Confidential Material will be kept confidential by Seller and its Representatives and not disclosed to any other person and that it will not use any Confidential Material to benefit or further its own business activities; provided, however, that any disclosure of such information may be made to which Purchaser consents, in advance, in writing. Seller shall, as and when requested by Purchaser and at Purchaser's expense, use commercially reasonable efforts to enforce any confidentiality or non-disclosure agreement entered into with bidders and their representatives in connection with the auction process with respect to the Shares, including enforcing Purchaser's demands for the return or destruction of any material covered by such agreements in accordance with the terms thereof.

Non-Competition, Non-Solicitation and Non-Disclosure. (a) For As part of the consideration for the transactions contemplated by this Agreement, the Stockholder covenants and agrees that, for a period of five four (54) years from following the Closing Date, except it will not, either directly or indirectly, alone or as permitted in this Section 6.9a partner, neither Seller nor joint venturer, officer, director, employee, lender, consultant, agent, independent contractor, stockholder or otherwise, or permit any business organization directly or indirectly controlled by it or any of its affiliates shall directly or indirectly (i) processAffiliates to, produce or manufacture (in each case, whether directly or indirectly or through co-packers and whether independently or with co-packers) value-added produce items, including packaged salads, salad kits, specialty salads, fresh-cut vegetables and fresh-cut fruit for sale through any outlets, including grocery stores, supercenters or other outlets engage in the retail distribution channel Restricted Business (as defined in Section 9.16 hereof) anywhere in the United States or any foreign country. In order to avoid any doubt, uncertainty or ambiguity, this Section 4.6(a) shall apply to prohibit the Stockholder and quick-service restaurant and other food service outlets, (ii) sell or provide equipment, processes or material for freshness extending atmosphere systems or (iii) own any interest its Affiliates from engaging in any business or activity included in the definition of "Restricted Business" in which the Stockholder or its Affiliates were engaged at any time during the two (2) year period preceding the Closing Date. Notwithstanding the foregoing, this Section 4.6(a) shall not preclude any Person engaged in any of the foregoing activities under clauses that acquires (i) fifty percent (50%) or more of the stock of the Stockholder or any of its Subsidiaries or (ii) above. The restrictions set forth in this Section 6.9 shall not be construed to prohibit all or restrict: (A) any minority equity investment by Seller substantially all of the assets of the Stockholder or any of its affiliates Subsidiaries, from engaging in the Restricted Business if such Person actively engaged in the Restricted Business prior to the date such Person first discusses any person such acquisition with the Stockholder or entity any of its Subsidiaries; provided, however, that the Stockholder and its direct and indirect Subsidiaries shall continue to be bound by all of the restrictions contained in which Seller this Section 4.6. The passive ownership by the Stockholder or its affiliates do not have the right to designate a controlling number Affiliates, of members of the board of directors (or similar governing body) of such entity, or in which Seller or its affiliates collectively hold not more than 10% three percent (3%) of the outstanding voting securities; (B) shares of capital stock of any corporation having a class of equity securities actively traded on a national securities exchange or in the sale over-the-counter market shall not be deemed, in and of produce items purchased by Seller from third parties on an arm's-length basis (including produce which has been processed) exclusively for resale (and not subject itself, to further processing) to its foodservice customers; (C) any business activity that would otherwise violate the prohibitions of this Section 6.9 that is carried 4.6(a). (b) Except for the right of the Stockholder to solicit and attempt to hire the individuals listed on by an entity or business that is acquired by Seller or otherwise becomes an affiliate thereof, but only if, at Schedule 4.6 hereto prior to the time of such acquisitionClosing, the revenues derived from such business by such entity or business constitute less than 10% of the gross revenues of such person or business; or (D) Seller's engaging in its foodservice distribution business as currently conducted. For Stockholder covenants and agrees that, for a period of three four (34) years from following the Closing Date, neither Seller nor it will not, either directly or indirectly, employ, hire, engage or be associated with, or attempt to employ, hire, engage or be associated with, or permit any business organization directly or indirectly controlled by the Stockholder or any of its affiliates willAffiliates to employ, hire, engage or be associated with, or attempt to employ, hire, engage or be associated with, any person who was employed by, or acted as a sales representative for, the Companies during the twelve (12) months prior to the Closing Date or at any time after the Closing Date, without the prior written consent of Purchaser, solicit any Person listed the Purchaser (which consent may be granted or withheld in Section 6.9(a) the sole discretion of the Disclosure Schedule to terminate such Person's customer relationship with the Companies or the Subsidiaries or enter into a relationship or arrangement with a different company or business engaged in the produce processing business with respect to any value-added produce item currently supplied, or contemplated to be supplied (as set forth in Section 6.9(a) of the Disclosure SchedulePurchaser), by the Companies or the Subsidiaries. (bc) Except as set forth in Section 6.9(b) of the Disclosure ScheduleThe Stockholder covenants and agrees that it will not, for a period of two (2) years from at any time following the Closing Date, neither Seller nor disclose, directly or indirectly, or make available to any Person, or in any manner use for its own benefit, any confidential information or trade secrets relating to the businesses, operations, assets or properties of its affiliates will, without the prior written consent of Purchaser, employ any officer or managerial employee of the Companies or their Subsidiaries, unless such person has ceased to be an officer or managerial employee for at least six (6) months; provided, however, that the foregoing shall not prohibit any general solicitations of employment not directed to employees of the Companies or their Subsidiaries (collectively, the "GROUP"), including, without limitation, business strategies, operating plans, acquisition strategies (including the placing identities of an advertisement (and any other information concerning) possible acquisition candidates), financial information (pro forma or solicitation through an employment agency otherwise), market analysis, acquisition terms and conditions, personnel information, product information, sources of leads and methods of obtaining new business, know-how, customer lists and relationships, vendor lists, underwriting strategies and methods or executive search firm any other methods of doing and operating the business of the Group, or other non-public proprietary and confidential information relating to the Group (provided "Confidential Information"), except to the extent that such employment agency or executive search firm is not directed, encouraged or advised by Seller or its affiliates to approach such officer or managerial employee) or prevent Seller or its affiliates from hiring any such person or any person who contacts Seller on his or her own initiative. (c) Seller agrees to treat any information in its possession concerning the Companies and their Subsidiaries (whether prepared by the Seller, its advisors or otherwise) based on, containing or otherwise reflecting such information, including any notes, memoranda, analyses, compilations, studies or other documents (herein collectively referred to as the "Confidential Material") in accordance with the provisions of this clause (c) and to take or abstain from taking certain other actions herein set forth. The term "Confidential Material" does not include information which (i) is obtained from a third party whom the Stockholder does not have any reason to believe is bound by a duty of confidentiality, (ii) relates to information that is or becomes generally available known to the public other than as a result of a breach thereof or (iii) is required to be disclosed by law (including without limitation any federal regulations) or judicial or administrative process (in which case prior to such disclosure the disclosing party shall promptly provide prior written notice of such required disclosure to the Purchaser in order to afford the Purchaser the opportunity to seek an appropriate protective order preventing such disclosure). (d) The Stockholder acknowledges and agrees that a breach by Seller it or its directorsAffiliates of any of the provisions of this Section 4.6 will cause irreparable harm and damage to the Purchaser and the Companies and that, officersin the event of such breach, employeesthe Purchaser shall have, agentsin addition to any and all remedies at law, advisorsthe right to an injunction, affiliates specific performance or representatives (including, without limitation, accountants, investment bankers and attorneys (such persons being collectively called "Representatives") in other equitable relief to prevent the violation of this Agreement or (ii) becomes available to Seller on a non-confidential basis from a source other than Purchaser the obligations of the Stockholder or its advisorsAffiliates hereunder without the necessity of proving such irreparable harm or damage or the inadequacy of remedies at law and without the necessity of posting any bond. (e) The Stockholder acknowledges and agrees that each provision of this Section 4.6 shall be treated as a separate and independent clause, provided that and the unenforceability of any one clause shall in no way impair the enforceability of any of the other clauses herein. Furthermore, if one or more of the provisions contained in this Section 4.6 shall for any reason be held to be excessively broad as to geographical scope, duration, activity or otherwise so as to be unenforceable at law, such source is not, to Seller's knowledge after reasonable inquiry, bound provision or provisions shall be construed by a confidentiality agreement with the appropriate judicial body by limiting and reducing it or other obligation of secrecy to Purchaser or another party. Seller hereby agrees that, except for such disclosures thereof as may be required by Law, the Confidential Material will be kept confidential by Seller and its Representatives and not disclosed to any other person and that it will not use any Confidential Material to benefit or further its own business activities; provided, however, that any disclosure of such information may be made to which Purchaser consents, in advance, in writing. Seller shallthem, as and when requested by Purchaser and at Purchaser's expensethe case may be, use commercially reasonable efforts so as to enforce any confidentiality or non-disclosure agreement entered into with bidders and their representatives in connection be enforceable to the maximum extent compatible with the auction process with respect to the Shares, including enforcing Purchaser's demands for the return or destruction of any material covered by such agreements in accordance with the terms thereofapplicable law as it shall then appear.

Non-Competition, Non-Solicitation and Non-Disclosure. (a) For As part of the consideration for the transactions contemplated by this Agreement, the Stockholder covenants and agrees that, for a period of five four (54) years from following the Closing Date, except it will not, either directly or indirectly, alone or as permitted in this Section 6.9a partner, neither Seller nor joint venturer, officer, director, employee, lender, consultant, agent, independent contractor, stockholder or otherwise, or permit any business organization directly or indirectly controlled by it or any of its affiliates shall directly or indirectly (i) processAffiliates to, produce or manufacture (in each case, whether directly or indirectly or through co-packers and whether independently or with co-packers) value-added produce items, including packaged salads, salad kits, specialty salads, fresh-cut vegetables and fresh-cut fruit for sale through any outlets, including grocery stores, supercenters or other outlets engage in the retail distribution channel Restricted Business (as defined in Section 9.16 hereof) anywhere in the United States or any foreign country. In order to avoid any doubt, uncertainty or ambiguity, this Section 4.6(a) shall apply to prohibit the Stockholder and quick-service restaurant and other food service outlets, (ii) sell or provide equipment, processes or material for freshness extending atmosphere systems or (iii) own any interest its Affiliates from engaging in any business or activity included in the definition of "Restricted Business" in which the Stockholder or its Affiliates were engaged at any time during the two (2) year period preceding the Closing Date. Notwithstanding the foregoing, this Section 4.6(a) shall not preclude any Person engaged in any of the foregoing activities under clauses that acquires (i) fifty percent (50%) or more of the stock of the Stockholder or any of its Subsidiaries or (ii) above. The restrictions set forth in this Section 6.9 shall not be construed to prohibit all or restrict: (A) any minority equity investment by Seller substantially all of the assets of the Stockholder or any of its affiliates Subsidiaries, from engaging in the Restricted Business if such Person actively engaged in the Restricted Business prior to the date such Person first discusses any person such acquisition with the Stockholder or entity any of its Subsidiaries; provided, however, that the Stockholder and its direct and indirect Subsidiaries shall continue to be bound by all of the restrictions contained in which Seller this Section 4.6. The passive ownership by the Stockholder or its affiliates do not have the right to designate a controlling number Affiliates, of members of the board of directors (or similar governing body) of such entity, or in which Seller or its affiliates collectively hold not more than 10% three percent (3%) of the outstanding voting securities; (B) shares of capital stock of any corporation having a class of equity securities actively traded on a national securities exchange or in the sale over-the-counter market shall not be deemed, in and of produce items purchased by Seller from third parties on an arm's-length basis (including produce which has been processed) exclusively for resale (and not subject itself, to further processing) to its foodservice customers; (C) any business activity that would otherwise violate the prohibitions of this Section 6.9 that is carried 4.6(a). (b) Except for the right of the Stockholder to solicit and attempt to hire the individuals listed on by an entity or business that is acquired by Seller or otherwise becomes an affiliate thereof, but only if, at Schedule 4.6 hereto prior to the time of such acquisitionClosing, the revenues derived from such business by such entity or business constitute less than 10% of the gross revenues of such person or business; or (D) Seller's engaging in its foodservice distribution business as currently conducted. For Stockholder covenants and agrees that, for a period of three four (34) years from following the Closing Date, neither Seller nor it will not, either directly or indirectly, employ, hire, engage or be associated with, or attempt to employ, hire, engage or be associated with, or permit any business organization directly or indirectly controlled by the Stockholder or any of its affiliates willAffiliates to employ, hire, engage or be associated with, or attempt to employ, hire, engage or be associated with, any person who was employed by, or acted as a sales representative for, the Companies during the twelve (12) months prior to the Closing Date or at any time after the Closing Date, without the prior written consent of Purchaser, solicit any Person listed the Purchaser (which consent may be granted or withheld in Section 6.9(a) the sole discretion of the Disclosure Schedule to terminate such Person's customer relationship with the Companies or the Subsidiaries or enter into a relationship or arrangement with a different company or business engaged in the produce processing business with respect to any value-added produce item currently supplied, or contemplated to be supplied (as set forth in Section 6.9(a) of the Disclosure SchedulePurchaser), by the Companies or the Subsidiaries. (bc) Except as set forth in Section 6.9(b) of the Disclosure ScheduleThe Stockholder covenants and agrees that it will not, for a period of two (2) years from at any time following the Closing Date, neither Seller nor disclose, directly or indirectly, or make available to any Person, or in any manner use for its own benefit, any confidential information or trade secrets relating to the businesses, operations, assets or properties of its affiliates will, without the prior written consent of Purchaser, employ any officer or managerial employee of the Companies or their Subsidiaries, unless such person has ceased to be an officer or managerial employee for at least six (6) months; provided, however, that the foregoing shall not prohibit any general solicitations of employment not directed to employees of the Companies or their Subsidiaries (collectively, the "Group"), including, without limitation, business strategies, operating plans, acquisition strategies (including the placing identities of an advertisement (and any other information concerning) possible acquisition candidates), financial information (pro forma or solicitation through an employment agency otherwise), market analysis, acquisition terms and conditions, personnel information, product information, sources of leads and methods of obtaining new business, know-how, customer lists and relationships, vendor lists, underwriting strategies and methods or executive search firm any other methods of doing and operating the business of the Group, or other non-public proprietary and confidential information relating to the Group (provided "Confidential Information"), except to the extent that such employment agency or executive search firm is not directed, encouraged or advised by Seller or its affiliates to approach such officer or managerial employee) or prevent Seller or its affiliates from hiring any such person or any person who contacts Seller on his or her own initiative. (c) Seller agrees to treat any information in its possession concerning the Companies and their Subsidiaries (whether prepared by the Seller, its advisors or otherwise) based on, containing or otherwise reflecting such information, including any notes, memoranda, analyses, compilations, studies or other documents (herein collectively referred to as the "Confidential Material") in accordance with the provisions of this clause (c) and to take or abstain from taking certain other actions herein set forth. The term "Confidential Material" does not include information which (i) is obtained from a third party whom the Stockholder does not have any reason to believe is bound by a duty of confidentiality, (ii) relates to information that is or becomes generally available known to the public other than as a result of a breach thereof or (iii) is required to be disclosed by law (including without limitation any federal regulations) or judicial or administrative process (in which case prior to such disclosure the disclosing party shall promptly provide prior written notice of such required disclosure to the Purchaser in order to afford the Purchaser the opportunity to seek an appropriate protective order preventing such disclosure). (d) The Stockholder acknowledges and agrees that a breach by Seller it or its directorsAffiliates of any of the provisions of this Section 4.6 will cause irreparable harm and damage to the Purchaser and the Companies and that, officersin the event of such breach, employeesthe Purchaser shall have, agentsin addition to any and all remedies at law, advisorsthe right to an injunction, affiliates specific performance or representatives (including, without limitation, accountants, investment bankers and attorneys (such persons being collectively called "Representatives") in other equitable relief to prevent the violation of this Agreement or (ii) becomes available to Seller on a non-confidential basis from a source other than Purchaser the obligations of the Stockholder or its advisorsAffiliates hereunder without the necessity of proving such irreparable harm or damage or the inadequacy of remedies at law and without the necessity of posting any bond. (e) The Stockholder acknowledges and agrees that each provision of this Section 4.6 shall be treated as a separate and independent clause, provided that and the unenforceability of any one clause shall in no way impair the enforceability of any of the other clauses herein. Furthermore, if one or more of the provisions contained in this Section 4.6 shall for any reason be held to be excessively broad as to geographical scope, duration, activity or otherwise so as to be unenforceable at law, such source is not, to Seller's knowledge after reasonable inquiry, bound provision or provisions shall be construed by a confidentiality agreement with the appropriate judicial body by limiting and reducing it or other obligation of secrecy to Purchaser or another party. Seller hereby agrees that, except for such disclosures thereof as may be required by Law, the Confidential Material will be kept confidential by Seller and its Representatives and not disclosed to any other person and that it will not use any Confidential Material to benefit or further its own business activities; provided, however, that any disclosure of such information may be made to which Purchaser consents, in advance, in writing. Seller shallthem, as and when requested by Purchaser and at Purchaser's expensethe case may be, use commercially reasonable efforts so as to enforce any confidentiality or non-disclosure agreement entered into with bidders and their representatives in connection be enforceable to the maximum extent compatible with the auction process with respect to the Shares, including enforcing Purchaser's demands for the return or destruction of any material covered by such agreements in accordance with the terms thereofapplicable law as it shall then appear.