Non-Competition; Non-Solicitation; Confidentiality. (a) For a period from the Closing Date until the fifth (5th) anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, directly or indirectly, own, manage, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, engaged in the Business or that otherwise competes with the Business (a “Restricted Business”). The parties hereto specifically acknowledge and agree that the remedy at law for any breach of the foregoing will be inadequate and that Newco, in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoever. (b) For a period from the Closing Date to the fifth (5th) anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall: (i) cause, solicit, induce or encourage any Employees of the Company to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The covenants and undertakings contained in this Section 6.7 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 6.7 will cause irreparable injury to Newco, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law or in equity. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party. (e) The Company shall use its commercially reasonable efforts to obtain the agreement of the Subsidiaries of the Company to the provisions of this Section 6.7 in form and content reasonably satisfactory to Newco.
Appears in 6 contracts
Samples: Asset Purchase Agreement (Central Iowa Energy, LLC), Asset Purchase Agreement (Central Iowa Energy, LLC), Asset Purchase Agreement (Western Iowa Energy, L.L.C.)
Non-Competition; Non-Solicitation; Confidentiality. (a) For a period from Executive acknowledges and recognizes the Closing Date until the fifth (5th) anniversary highly competitive nature of the Closing Date, neither business of the Company nor and its affiliates and accordingly agrees that, in consideration of this Agreement, the rights conferred hereunder, any Change of its Subsidiaries shallControl Bonus and any payments hereunder, during the Non-Compete Term, Executive will not engage, either directly or indirectly, as a principal for his own account or jointly with others, or as a stockholder in any corporation or joint stock association, in any business other than the Company that is principally engaged in the sale of fast food pizza (whether as home delivery, eat-in or carry-out) (the "BUSINESS") within the United States; provided, that nothing herein shall prevent Executive from (i) owning, directly or indirectly, ownnot more than five percent of the outstanding shares of, manageor any other equity interest in, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, entity engaged in the Business and listed or that otherwise competes with the Business traded on a national securities exchanges or in an over-the- counter securities market or (ii) being a “Restricted Business”). The parties hereto specifically acknowledge and agree that the remedy at law for any breach franchisee of the foregoing will be inadequate and that Newco, in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoeverCompany.
(b) For a period from During the Closing Date to the fifth (5th) anniversary of the Closing DateNon-Compete Term, neither the Company nor any of its Subsidiaries shall: Executive will not (i) cause, employ or solicit, induce or encourage receive or accept the performance of services by any Employees current employee with managerial responsibility or other current key employee of the Company to leave or any subsidiary of the Company, except in connection with general, non-targeted recruitment efforts such employment or hire, employ or otherwise engage any such individual; as advertisements and job listings or (ii) cause, induce or encourage solicit for business any material actual or prospective client, customer, supplier or licensor of the Business (including any existing person who is a customer or former customer of the Company and or any Person that becomes of its affiliates unless such person should have ceased to have been a client or customer of the Business after the Closing) Company or any other Person who has of its affiliates for a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipperiod of at least six (6) months.
(c) The covenants and undertakings contained in this Section 6.7 relate to matters which are of a special, unique and extraordinary character and a violation Executive will not at any time (whether during or after his employment with the Company) disclose or use for his own benefit or purposes or the benefit or purposes of any other person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise other than the Company and any of its subsidiaries or affiliates, any trade secrets, information, data, or other confidential information relating to customers, development programs, costs, marketing, trading, investment, sales activities, promotion, credit and financial data, financing methods, plans, or the business and affairs of the terms Company generally, or of any subsidiary or affiliate of the Company, unless required to do so by applicable law or court order, subpoena or decree or otherwise required by law, with reasonable evidence of such determination promptly provided to the Company. The preceding sentence of this Section 6.7 will cause irreparable injury paragraph (c) shall not apply to Newco, information which is not unique to the amount Company or which is generally known to the industry or the public other than as a result of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any Executive's breach of this Section 6.7 covenant. Executive agrees that upon termination of his employment with the Company for any reason, he will be inadequatereturn to the Company immediately all memoranda, books, papers, plans, information, letters and other data, and all copies thereof or therefrom, in any way relating to the business of the Company and its affiliates, except that he may retain personal notes, notebooks and diaries. ThereforeExecutive further agrees that he will not retain or use for his account at any time any trade names, Newco will be entitled to an injunction, restraining order trademark or other equitable relief from any court proprietary business designation used or owned in connection with the business of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder Company or at law or in equityits affiliates.
(d) The parties hereto agree thatIt is expressly understood and agreed that although Executive and the Company consider the restrictions contained in this Section 4 to be reasonable, if any a final judicial determination is made by a court of competent jurisdiction in a final nonappealable judgment determines that a specified the time period, a specified geographical area, a specified business limitation or territory or any other relevant feature of restriction contained in this Section 6.7 Agreement is unreasonablean unenforceable restriction against Executive, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement of the Subsidiaries of the Company to the provisions of this Section 6.7 Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judiciary determine or indicate to be enforceable. Alternatively, if any tribunal of competent jurisdiction finds that any restriction contained in form this Agreement is unenforceable, and content reasonably satisfactory such restriction cannot be amended so as to Newcomake it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
Appears in 6 contracts
Samples: Severance Agreement (Dominos Pizza Government Services Division Inc), Severance Agreement (Dominos Pizza Government Services Division Inc), Severance Agreement (Dominos Pizza Government Services Division Inc)
Non-Competition; Non-Solicitation; Confidentiality. (a) For Executive represents that acceptance of employment under this Agreement and performance under this Agreement are not in violation of any restrictions or covenants under the terms of any other agreements to which Executive is a period from party.
(b) Executive acknowledges and recognizes the Closing Date until the fifth (5th) anniversary highly competitive nature of the Closing Datebusiness of Company and accordingly agrees that, neither in consideration of this Agreement, the rights conferred hereunder, and any payment hereunder, while he is employed by Company nor and for the two (2) year period following the termination of Executive's employment with Company, whether such termination occurs before or after this Agreement has terminated, for any reason ("Non-Compete Term"), Executive shall not engage, either directly or indirectly, as a principal for Executive's own account or jointly with others, or as a stockholder in any corporation or joint stock association, or as a partner or member of a general or limited liability entity, or as an employee, officer, director, agent, consultant or in any other advisory capacity in any business other than Company or its Subsidiaries shallsubsidiaries which designs, develops, manufacturers, distributes, sells or markets the type of products or services sold, distributed or provided by Company or its subsidiaries during the two (2) year period prior to the date of employment termination (the "Business"); provided that nothing herein shall prevent Executive from owning, directly or indirectly, ownnot more than five percent (5%) of the outstanding shares of, manageor any other equity interest in, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, entity engaged in the Business and listed or that otherwise competes with the Business (traded on a “Restricted Business”). The parties hereto specifically acknowledge and agree that the remedy at law for any breach of the foregoing will be inadequate and that Newco, national securities exchanges or in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoever.
(b) For a period from the Closing Date to the fifth (5th) anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall: (i) cause, solicit, induce or encourage any Employees of the Company to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipan over-the-counter securities market.
(c) The covenants During the Non-Compete Term, Executive shall not (i) directly or indirectly employ or solicit, or receive or accept the performance of services by, any active employee of Company or any of its subsidiaries who is employed primarily in connection with the Business, except in connection with general, non-targeted recruitment efforts such as advertisements and undertakings contained job listings, or directly or indirectly induce any employee of Company to leave Company, or assist in this Section 6.7 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms foregoing, or (ii) solicit for business (relating to the Business) any person who is a customer or former customer of this Section 6.7 will cause irreparable injury Company or any of its subsidiaries, unless such person shall have ceased to Newco, the amount have been such a customer for a period of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law or in equityleast six (6) months.
(d) The parties hereto agree that, if Executive shall not at any court time (whether during or after his employment with Company) disclose or use for Executive's own benefit or purposes or the benefit or purposes of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise other than Company and any of its subsidiaries, any trade secrets, information, data, or other confidential information of Company, including but not limited to, information relating to customers, development programs, costs, marketing, trading, investment, sales activities, promotion, credit and financial data, financing methods, plans or the business and affairs of Company generally, or of any subsidiary of Company, unless required to do so by applicable law or court order, subpoena or decree or otherwise required by law, with reasonable evidence of such determination promptly provided to Company. The preceding sentence of this Section 6.7 paragraph (d) shall not apply to information which is unreasonablenot unique to Company or which is generally known to the industry or the public other than as a result of Executive's breach of this covenant. Executive agrees that upon termination of employment with Company for any reason, arbitrary Executive will return to Company immediately all memoranda, books, papers, plans, information, letters and other data, and all copies thereof or against public policytherefrom, then a lesser in any way relating to the business of Company and its subsidiaries, except that Executive may retain personal notes, notebooks and diaries. Executive further agrees that Executive will not retain or use for Executive's account at any time periodany trade names, geographical area, business limitation trademark or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against proprietary business designation used or owned in connection with the applicable partybusiness of Company or its subsidiaries.
(e) The It is expressly understood and agreed that although Executive and Company shall use its commercially reasonable efforts consider the restrictions contained in this Section 13 to obtain be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the agreement of the Subsidiaries of the Company to time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any tribunal of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
(f) As a condition to the receipt of any benefits described in this Agreement, Executive shall be required to execute an agreement pursuant to which Executive releases any claims he may have against Company and agrees to the continuing enforceability of the restrictive covenants of this Agreement.
(g) This Section 6.7 in form and content reasonably satisfactory to Newco13 will survive the termination of this Agreement.
Appears in 4 contracts
Samples: Employment Agreement (Trimas Corp), Employment Agreement (Trimas Corp), Employment Agreement (Trimas Corp)
Non-Competition; Non-Solicitation; Confidentiality. (a) For a period from Executive acknowledges and recognizes the Closing Date until the fifth (5th) anniversary highly competitive nature of the Closing Date, neither business of the Company nor and accordingly agrees that, in consideration of this Agreement, the rights conferred hereunder, and any payments hereunder, during the Non-Compete Term, Executive will not engage, either directly or indirectly, as an employee, consultant or independent contractor, or as a principal for his own account or jointly with others, or as a stockholder in any corporation or joint stock association, in any business other than the Company or its subsidiaries which designs, develops, manufactures, distributes, sells or markets the type of products or services sold, distributed or provided by the Company or its Subsidiaries shallsubsidiaries during the two year period prior to the Date of Termination (the "BUSINESS"); provided that nothing herein shall prevent Executive from owning, directly or indirectly, ownnot more than 5% of the outstanding shares of, manageor any other equity interest in, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, entity engaged in the Business and listed or that otherwise competes with the Business (traded on a “Restricted Business”). The parties hereto specifically acknowledge and agree that the remedy at law for any breach of the foregoing will be inadequate and that Newco, national securities exchanges or in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoeveran over-the-counter securities market.
(b) For a period from During the Closing Date to Non-Compete Term, Executive will not (i) directly or indirectly employ or solicit, or receive or accept the fifth (5th) anniversary performance of services by, any active employee of the Closing Date, neither the Company nor or any of its Subsidiaries shall: (i) causesubsidiaries who is employed primarily in connection with the Business, solicitexcept in connection with general, non-targeted recruitment efforts such as advertisements and job listings or directly or indirectly induce or encourage any Employees employee of the Company to leave such employment the Company, or hire, employ or otherwise engage assist in any such individual; of the foregoing or (ii) cause, induce or encourage solicit for business (relating to the Business) any material actual or prospective client, customer, supplier or licensor of the Business (including any existing person who is a customer or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) or any other Person who has of its subsidiaries, unless such person shall have ceased to have been such a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipcustomer for a period of at least six months.
(c) The covenants and undertakings contained in this Section 6.7 relate to matters which are of a special, unique and extraordinary character and a violation Executive will not at any time (whether during or after his employment with the Company) disclose or use for his own benefit or purposes or the benefit or purposes of any other person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise other than the Company and any of its subsidiaries, any trade secrets, information, data, or other confidential information relating to customers, development programs, costs, marketing, trading, investment, sales activities, promotion, credit and financial data, financing methods, plans, or the business and affairs of the terms Company generally, or of any subsidiary of the Company, unless required to do so by applicable law or court order, subpoena or decree or otherwise required by law, with reasonable evidence of such determination promptly provided to the Company. The preceding sentence of this Section 6.7 will cause irreparable injury paragraph (c) shall not apply to Newco, information which is not unique to the amount Company or which is generally known to the industry or the public other than as a result of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any Executive's breach of this Section 6.7 covenant. Executive agrees that upon termination of his employment with the Company for any reason, he will be inadequatereturn to the Company immediately all memoranda, books, papers, plans, information, letters and other data, and all copies thereof or therefrom, in any way relating to the business of the Company and its subsidiaries, except that he may retain personal notes, notebooks and diaries. ThereforeExecutive further agrees that he will not retain or use for his account at any time any trade names, Newco will be entitled to an injunction, restraining order trademark or other equitable relief from any court proprietary business designation used or owned in connection with the business of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder Company or at law or in equityits subsidiaries.
(d) The parties hereto agree thatIt is expressly understood and agreed that although Executive and the Company consider the restrictions contained in this Section 5 to be reasonable, if any a final judicial determination is made by a court of competent jurisdiction in a final nonappealable judgment determines that a specified the time period, a specified geographical area, a specified business limitation or territory or any other relevant feature restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time period, geographical area, business limitation or other relevant feature which is determined by and territory and to such maximum extent as such court may judicially determine or indicate to be reasonableenforceable. Alternatively, if any tribunal of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot arbitrary and be amended so as to make it enforceable, such finding shall not against public policy may be enforced against affect the applicable partyenforceability of any of the other restrictions contained herein.
(e) The Company shall use its commercially reasonable efforts to obtain This Section 5 will survive the agreement of the Subsidiaries of the Company to the provisions termination of this Section 6.7 in form and content reasonably satisfactory to NewcoAgreement.
Appears in 4 contracts
Samples: Change of Control Agreement (Mascotech Inc), Change of Control Agreement (Mascotech Inc), Change of Control Agreement (Mascotech Inc)
Non-Competition; Non-Solicitation; Confidentiality. (a) For a period from Executive acknowledges and recognizes the Closing Date until the fifth (5th) anniversary highly competitive nature of the Closing Date, neither business of the Company nor and its affiliates and accordingly agrees that, in consideration of the benefits and protections conferred under this Agreement and any Change of its Subsidiaries shallControl Bonus, if Executive remains in the employment of the Company as of the date immediately preceding a Change of Control, then during the Non-Compete Term, Executive will not, other than on behalf of the Company, engage, either directly or indirectly, as an employee, officer, consultant, director, independent contractor, investor or principal for his own account or jointly with others in any business that is principally engaged in the publication, in print or online, of a major circulation daily newspaper with a primary circulation market in Phoenix, Arizona or Indianapolis, Indiana metropolitan areas (the "Business"); provided, that nothing herein shall prevent Executive from owning, directly or indirectly, ownnot more than five percent of the outstanding shares of, manageor any other equity interest in, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, entity engaged in the Business and listed or that otherwise competes traded on a national securities exchanges or in an over-the-counter securities market.
(b) During the Non-Compete Term, Executive will not directly or indirectly employ, solicit, or receive or accept the performance of services by any current employee with managerial responsibility or other current key employee of the Company or any subsidiary of the Company, except in connection with general, non-targeted recruitment efforts such as advertisements and job listings.
(c) Executive will not at any time (whether during or after his employment with the Business (a “Restricted Business”)Company) disclose or use for his own benefit or purposes or the benefit or purposes of any other person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise other than the Company and any of its subsidiaries or affiliates, any trade secrets, information, data, or other confidential information relating to customers, business plans, costs, marketing, sales activities, promotion, financing methods or the business and affairs of the Company generally, or of any subsidiary or affiliate of the Company, unless required to do so by applicable law or court order, subpoena or decree or otherwise required by law. The parties hereto specifically acknowledge preceding sentence shall not apply to information which is not unique to the Company or which is generally known to the industry or the public other than as a result of Executive's breach of this covenant. Executive agrees that upon termination of his employment with the Company for any reason, he will return to the Company immediately all memoranda, books, papers, plans, information, letters and agree other data, and all copies thereof or therefrom, in any way relating to the business of the Company and its affiliates, except that he may retain personal notes, notebooks and diaries.
(d) It is expressly understood and agreed that although Executive and the Company consider the restrictions contained in this Section 6 to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the remedy time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any tribunal of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
(e) Executive acknowledges and agrees that the Company's remedies at law for any a breach or threatened breach of any of the foregoing will provisions of this Section 6 would be inadequate and that Newcoand, in recognition of this fact, Executive agrees that, in the event of such a breach or threatened breach, in addition to any other relief available to itremedies at law, the Company, without posting any bond, shall be entitled to seek equitable relief in the form of specific performance, temporary and restraining order, temporary or permanent injunctive relief without the necessity of proving actual damage injunction or posting any bond whatsoeverother equitable remedy which may then be available.
(bf) For a period from The restrictions set forth above in Sections 6(a) and 6(b) above shall apply only if Executive remains in the Closing Date to the fifth (5th) anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall: (i) cause, solicit, induce or encourage any Employees employment of the Company to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor as of the Business (including any existing or former customer date immediately preceding a Change of the Company Control, and any Person that becomes a client or customer of the Business after the Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship.
(c) The covenants shall be null and undertakings contained in this Section 6.7 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 6.7 will cause irreparable injury to Newco, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law void if Executive's employment terminates for any breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled reason prior to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law or in equitysuch date.
(d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement of the Subsidiaries of the Company to the provisions of this Section 6.7 in form and content reasonably satisfactory to Newco.
Appears in 3 contracts
Samples: Executive Change of Control Agreement (Central Newspapers Inc), Executive Change of Control Agreement (Central Newspapers Inc), Executive Change of Control Agreement (Central Newspapers Inc)
Non-Competition; Non-Solicitation; Confidentiality. (a) For Executive represents that acceptance of employment under this Agreement and performance under this Agreement are not in violation of any restrictions or covenants under the terms of any other agreements to which Executive is a period from party.
(b) Executive acknowledges and recognizes the Closing Date until the fifth (5th) anniversary highly competitive nature of the Closing Datebusiness of Company and accordingly agrees that, neither in consideration of this Agreement, the rights conferred hereunder, and any payment hereunder, during the Term of Employment and for the two (2) year period following the termination of Executive's employment with Company, for any reason ("Non-Compete Term"), Executive shall not engage, either directly or indirectly, as a principal for Executive's own account or jointly with others, or as a stockholder in any corporation or joint stock association, or as a partner or member of a general or limited liability entity, or as an employee, officer, director, agent, consultant or in any other advisory capacity in any business other than Company nor any or its subsidiaries which designs, develops, manufacturers, distributes, sells or markets the type of products or services sold, distributed or provided by Company or its Subsidiaries shallsubsidiaries during the two (2) year period prior to the date of termination (the "Business"); provided that nothing herein shall prevent Executive from owning, directly or indirectly, ownnot more than five percent (5%) of the outstanding shares of, manageor any other equity interest in, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, entity engaged in the Business and listed or that otherwise competes with the Business (traded on a “Restricted Business”). The parties hereto specifically acknowledge and agree that the remedy at law for any breach of the foregoing will be inadequate and that Newco, national securities exchanges or in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoever.
(b) For a period from the Closing Date to the fifth (5th) anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall: (i) cause, solicit, induce or encourage any Employees of the Company to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipan over-the-counter securities market.
(c) The covenants During the Non-Compete Term, Executive shall not (i) directly or indirectly employ or solicit, or receive or accept the performance of services by, any active employee of Company or any of its subsidiaries who is employed primarily in connection with the Business, except in connection with general, non-targeted recruitment efforts such as advertisements and undertakings contained job listings, or directly or indirectly induce any employee of Company to leave Company, or assist in this Section 6.7 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms foregoing, or (ii) solicit for business (relating to the Business) any person who is a customer or former customer of this Section 6.7 will cause irreparable injury Company or any of its subsidiaries, unless such person shall have ceased to Newco, the amount have been such a customer for a period of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law or in equityleast six (6) months.
(d) The parties hereto agree that, if Executive shall not at any court time (whether during or after his employment with Company) disclose or use for Executive's own benefit or purposes or the benefit or purposes of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise other than Company and any of its subsidiaries, any trade secrets, information, data, or other confidential information of the Company, including but not limited to, information relating to customers, development programs, costs, marketing, trading, investment, sales activities, promotion, credit and financial data, financing methods, plans or the business and affairs of Company generally, or of any subsidiary of Company, unless required to do so by applicable law or court order, subpoena or decree or otherwise required by law, with reasonable evidence of such determination promptly provided to Company. The preceding sentence of this Section 6.7 paragraph (d) shall not apply to information which is unreasonablenot unique to Company or which is generally known to the industry or the public other than as a result of Executive's breach of this covenant. Executive agrees that upon termination of employment with Company for any reason, arbitrary Executive will return to Company immediately all memoranda, books, papers, plans, information, letters and other data, and all copies thereof or against public policytherefrom, then a lesser in any way relating to the business of Company and its subsidiaries, except that Executive may retain personal notes, notebooks and diaries. Executive further agrees that Executive will not retain or use for Executive's account at any time periodany trade names, geographical area, business limitation trademark or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against proprietary business designation used or owned in connection with the applicable partybusiness of Company or its subsidiaries.
(e) The It is expressly understood and agreed that although Executive and Company shall use its commercially reasonable efforts consider the restrictions contained in this Section 13 to obtain be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the agreement of the Subsidiaries of the Company to time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any tribunal of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
(f) As a condition to the receipt of any benefits described in this Agreement, Executive shall be required to execute an agreement pursuant to which Executive releases any claims he may have against Company and agrees to the continuing enforceability of the restrictive covenants of this Agreement.
(g) This Section 6.7 in form and content reasonably satisfactory to Newco13 will survive the termination of this Agreement.
Appears in 3 contracts
Samples: Employment Agreement (Metaldyne Corp), Employment Agreement (Metaldyne Corp), Employment Agreement (Metaldyne Corp)
Non-Competition; Non-Solicitation; Confidentiality. (a) For Executive represents that acceptance of employment under this Agreement and performance under this Agreement are not in violation of any restrictions or covenants under the terms of any other agreements to which Executive is a period from party.
(b) Executive acknowledges and recognizes the Closing Date until the fifth (5th) anniversary highly competitive nature of the Closing Datebusiness of Company and accordingly agrees that, neither in consideration of this Agreement, the rights conferred hereunder, and any payment hereunder, during the Term of Employment and for the two (2) year period following the termination of Executive's employment with Company, for any reason ("Non-Compete Term"), Executive shall not engage, either directly or indirectly, as a principal for Executive's own account or jointly with others, or as a stockholder in any corporation or joint stock association, or as a partner or member of a general or limited liability entity, or as an employee, officer, director, agent, consultant or in any other advisory capacity in any business other than Company nor any or its subsidiaries which designs, develops, manufacturers, distributes, sells or markets the type of products or services sold, distributed or provided by Company or its Subsidiaries shallsubsidiaries during the two (2) year period prior to the date of termination (the "Business"); provided that nothing herein shall prevent Executive from owning, directly or indirectly, ownnot more than five percent (5%) of the outstanding shares of, manageor any other equity interest in, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, entity engaged in the Business and listed or that otherwise competes with the Business (traded on a “Restricted Business”). The parties hereto specifically acknowledge and agree that the remedy at law for any breach of the foregoing will be inadequate and that Newco, national securities exchanges or in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoever.
(b) For a period from the Closing Date to the fifth (5th) anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall: (i) cause, solicit, induce or encourage any Employees of the Company to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipan over-the-counter securities market.
(c) The covenants During the Non-Compete Term, Executive shall not (i) directly or indirectly employ or solicit, or receive or accept the performance of services by, any active employee of Company or any of its subsidiaries who is employed primarily in connection with the Business, except in connection with general, non-targeted recruitment efforts such as advertisements and undertakings contained job listings, or directly or indirectly induce any employee of Company to leave Company, or assist in this Section 6.7 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms foregoing, or (ii) solicit for business (relating to the Business) any person who is a customer or former customer of this Section 6.7 will cause irreparable injury Company or any of its subsidiaries, unless such person shall have ceased to Newco, the amount have been such a customer for a period of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law or in equityleast six (6) months.
(d) The parties hereto agree that, if Executive shall not at any court time (whether during or after his employment with Company) disclose or use for Executive's own benefit or purposes or the benefit or purposes of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 is unreasonableperson, arbitrary or against public policyfirm, then a lesser time periodpartnership, geographical areajoint venture, business limitation association, corporation or other relevant feature which is determined by such court to be reasonablebusiness organization, not arbitrary entity or enterprise other than Company and not against public policy may be enforced against the applicable party.
(e) The Company shall use any of its commercially reasonable efforts to obtain the agreement subsidiaries, any trade secrets, information, data, or other confidential information of the Subsidiaries Company, including but not limited to, information relating to customers, development programs, costs, marketing, trading, investment, sales activities, promotion, credit and financial data, financing methods, plans or the business and affairs of the Company to the provisions generally, or of this Section 6.7 in form and content reasonably satisfactory to Newco.any subsidiary of Company, unless
Appears in 3 contracts
Samples: Employment Agreement (Trimas Corp), Employment Agreement (Trimas Co LLC), Employment Agreement (Trimas Co LLC)
Non-Competition; Non-Solicitation; Confidentiality. (a) For Executive represents that acceptance of employment under this Agreement and performance under this Agreement are not in violation of any restrictions or covenants under the terms of any other agreements to which Executive is a period from party.
(b) Executive acknowledges and recognizes the Closing Date until the fifth (5th) anniversary highly competitive nature of the Closing Datebusiness of Company and accordingly agrees that, neither in consideration of this Agreement, the rights conferred hereunder, and any payment hereunder, during the Term of Employment and for the twenty-four (24) month period following the termination of Executive's employment with Company, for any reason ("Non-Compete Term"), Executive shall not engage, either directly or indirectly, as a principal for Executive's own account or jointly with others, or as a stockholder in any corporation or joint stock association, or as a partner or member of a general or limited liability entity, or as an employee, officer, director, agent, consultant or in any other advisory capacity in any business other than Company nor any or its subsidiaries which designs, develops, manufacturers, distributes, sells or markets the type of products or services sold, distributed or provided by Company or its Subsidiaries shallsubsidiaries during the two (2) year period prior to the date of termination (the "Business"); provided that nothing herein shall prevent Executive from owning, directly or indirectly, ownnot more than five percent (5%) of the outstanding shares of, manageor any other equity interest in, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, entity engaged in the Business and listed or that otherwise competes with the Business (traded on a “Restricted Business”). The parties hereto specifically acknowledge and agree that the remedy at law for any breach of the foregoing will be inadequate and that Newco, national securities exchanges or in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoever.
(b) For a period from the Closing Date to the fifth (5th) anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall: (i) cause, solicit, induce or encourage any Employees of the Company to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipan over-the-counter securities market.
(c) The covenants During the Non-Compete Term, Executive shall not (i) directly or indirectly employ or solicit, or receive or accept the performance of services by, any active employee of Company or any of its subsidiaries who is employed primarily in connection with the Business, except in connection with general, non-targeted recruitment efforts such as advertisements and undertakings contained job listings, or directly or indirectly induce any employee of Company to leave Company, or assist in this Section 6.7 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms foregoing, or (ii) solicit for business (relating to the Business) any person who is a customer or former customer of this Section 6.7 will cause irreparable injury Company or any of its subsidiaries, unless such person shall have ceased to Newco, the amount have been such a customer for a period of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law or in equityleast six (6) months.
(d) The parties hereto agree that, if Executive shall not at any court time (whether during or after his employment with Company) disclose or use for Executive's own benefit or purposes or the benefit or purposes of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise other than Company and any of its subsidiaries, any trade secrets, information, data, or other confidential information of the Company, including but not limited to, information relating to customers, development programs, costs, marketing, trading, investment, sales activities, promotion, credit and financial data, financing methods, plans or the business and affairs of Company generally, or of any subsidiary of Company, unless required to do so by applicable law or court order, subpoena or decree or otherwise required by law, with reasonable evidence of such determination promptly provided to Company. The preceding sentence of this Section 6.7 paragraph (d) shall not apply to information which is unreasonablenot unique to Company or which is generally known to the industry or the public other than as a result of Executive's breach of this covenant. Executive agrees that upon termination of employment with Company for any reason, arbitrary Executive will return to Company immediately all memoranda, books, papers, plans, information, letters and other data, and all copies thereof or against public policytherefrom, then a lesser in any way relating to the business of Company and its subsidiaries, except that Executive may retain personal notes, notebooks and diaries. Executive further agrees that Executive will not retain or use for Executive's account at any time periodany trade names, geographical area, business limitation trademark or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against proprietary business designation used or owned in connection with the applicable partybusiness of Company or its subsidiaries.
(e) The It is expressly understood and agreed that although Executive and Company shall use its commercially reasonable efforts consider the restrictions contained in this Section 13 to obtain be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the agreement of the Subsidiaries of the Company to time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any tribunal of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
(f) As a condition to the receipt of any benefits described in this Agreement, Executive shall be required to execute an agreement pursuant to which Executive releases any claims he may have against Company and agrees to the continuing enforceability of the restrictive covenants of this Agreement.
(g) This Section 6.7 in form and content reasonably satisfactory to Newco13 will survive the termination of this Agreement.
Appears in 3 contracts
Samples: Employment Agreement (Metaldyne Corp), Employment Agreement (Trimas Corp), Employment Agreement (Trimas Corp)
Non-Competition; Non-Solicitation; Confidentiality. (a) For Upon the occurrence of a Change in Control followed by the Executive’s Involuntary Termination of Employment in a manner in which Executive is entitled to receive payments under Section 3 hereof, Executive agrees not to compete with the Company or the Bank for a period from of twelve (12) months following the Closing Date until the fifth (5th) anniversary date of the Closing DateExecutive’s Date of Termination in any city or town in which the Bank operates a branch or main office, neither determined as of the Company nor any Date of its Subsidiaries shallTermination. Executive agrees that during such period, Executive shall not work for or advise, consult or otherwise serve with, directly or indirectly, own, manage, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, engaged in the Business or that otherwise entity whose business materially competes with the Business (depository, lending or other business activities of the Company or the Bank. Executive further agrees that during such 12-month period he/she will not solicit, hire or encourage any officer or employee of the Company or the Bank or each of the Company’s or the Bank’s affiliates to accept employment with any other entity. The Executive further agrees that for a “Restricted Business”)period of twelve months following his/her Date of Termination he/she will not, directly or indirectly, for his/her benefit or for the benefit of any other person or entity solicit from any customer, doing business with the Bank or the Company as of the Executive’s Date of Termination, business of the same or of a similar nature to the business of the Bank or the Company with such customer. The parties hereto specifically acknowledge hereto, recognizing that irreparable injury will result to each of the Company and the Bank and their businesses and property in the event of Executive’s breach of this Section 5(a) agree that in the remedy at law for event of any such breach of by Executive, the foregoing Company and the Bank will be inadequate and that Newcoentitled, in addition to any other relief remedies and damages available to itthem at law, shall to an injunction to restrain the violation hereof by Executive, Executive’s partners, agents, servants, employers, employees and all persons acting for or with Executive. Nothing herein will be entitled construed as prohibiting either of the Company or the Bank from pursuing any other remedies available to temporary and permanent injunctive relief without it for such breach or threatened breach, including the necessity recovery of proving actual damage or posting any bond whatsoeverdamages from Executive.
(b) For a period from Executive recognizes and acknowledges that the Closing Date to the fifth (5th) anniversary knowledge of the Closing Date, neither the Company nor any of its Subsidiaries shall: (i) cause, solicit, induce or encourage any Employees of the Company to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer business activities and plans for business activities of the Company and any Person that becomes Bank and each of their affiliates, as it may exist from time to time, is a client or customer valuable, special and unique asset of the Business business of the Company and the Bank. Executive will not, during or after the Closing) term of his/her employment, disclose any knowledge of the past, present, planned or any other Person who has a material considered business relationship with activities of the BusinessCompany or the Bank, or affiliates thereof, to terminate any person, firm, corporation or modify other entity for any such actual reason or prospective relationship.
(c) The covenants and undertakings contained in this Section 6.7 relate to matters purpose whatsoever. Notwithstanding the foregoing, Executive may disclose any knowledge of banking, financial and/or economic principles, concepts or ideas which are not solely and exclusively derived from the business plans and activities of the Company or the Bank. In the event of a special, unique and extraordinary character and a violation of any breach or threatened breach by the Executive of the terms provisions of this Section 6.7 will cause irreparable injury to Newco6(b), each of the amount of which will be impossible to estimate or determine Company and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 6.7 will be inadequate. Therefore, Newco Bank will be entitled to an injunctioninjunction restraining Executive from disclosing, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law whole or in equity.
(d) The parties hereto agree thatpart, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement knowledge of the Subsidiaries past, present, planned or considered business activities of the Company or the Bank or affiliates thereof, or from rendering any services to any person, firm corporation, other entity to whom such knowledge, in whole or in part, has been disclosed or is threatened to be disclosed. Nothing herein will be construed as prohibiting the Company or the Bank from pursuing any other remedies available to the provisions Company or the Bank for such breach or threatened breach, including the recovery of this Section 6.7 in form and content reasonably satisfactory to Newcodamages from Executive.
Appears in 3 contracts
Samples: Change in Control Agreement (Community First Inc), Change in Control Agreement (Community First Inc), Change in Control Agreement (Community First Inc)
Non-Competition; Non-Solicitation; Confidentiality. (a) For Executive represents that acceptance of employment under this Agreement and performance under this Agreement are not in violation of any restrictions or covenants under the terms of any other agreements to which Executive is a period from party.
(b) Executive acknowledges and recognizes the Closing Date until the fifth (5th) anniversary highly competitive nature of the Closing Datebusiness of Company and accordingly agrees that, neither in consideration of this Agreement, the rights conferred hereunder, and any payment hereunder, Executive shall not engage, either directly or indirectly, as a principal for Executive’s own account or jointly with others, or as a stockholder in any corporation or joint stock association, or as a partner or member of a general or limited liability entity, or as an employee, officer, director, agent, consultant or in any other advisory capacity, while employed by Company nor and for the six-month period following the termination of Executive’s employment for any reason (“Non-Compete Term”), in any business (other than Company, Metaldyne or their respective subsidiaries) which designs, develops, manufactures, distributes, sells or markets the type of products or services sold, distributed or provided by Company, Metaldyne or any of its Subsidiaries shalltheir respective subsidiaries during the two (2) year period prior to the date of termination of Executive’s employment (the “Business”). Nothing herein shall prevent Executive from owning, directly or indirectly, ownnot more than five percent (5%) of the outstanding shares of, manageor any other equity interest in, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, entity engaged in the Business and listed or that otherwise competes with the Business (traded on a “Restricted Business”). The parties hereto specifically acknowledge and agree that the remedy at law for any breach of the foregoing will be inadequate and that Newco, national securities exchange or in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoever.
(b) For a period from the Closing Date to the fifth (5th) anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall: (i) cause, solicit, induce or encourage any Employees of the Company to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipan over-the-counter securities market.
(c) The covenants During the Non-Compete Term, Executive shall not (i) directly or indirectly employ, solicit or receive or accept the performance of services by, any active employee of Company, Metaldyne or any of their respective subsidiaries who is employed primarily in connection with the Business, except in connection with general, non-targeted recruitment efforts such as advertisements and undertakings contained job listings, or directly or indirectly induce any employee of Company, Metaldyne or any of their respective subsidiaries to leave Company, Metaldyne or any of their respective subsidiaries, or assist in this Section 6.7 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 6.7 will cause irreparable injury to Newcoforegoing, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law (ii) solicit for any breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction business that is engaged in the event Business any person who is a customer or former customer of Company, Metaldyne or any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition their respective subsidiaries, unless such person shall have ceased to any other rights and remedies which Newco may have hereunder or been such a customer for a period of at law or in equityleast six (6) months.
(d) The parties hereto agree thatExecutive shall not at any time (whether during or after his employment with Company) disclose or use for Executive’s own benefit or purposes or the benefit or purposes of any other person, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time periodfirm, a specified geographical areapartnership, a specified joint venture, association, corporation or other business limitation organization, entity or enterprise other than Company, Metaldyne or any of their respective subsidiaries, any trade secrets, information, data or other relevant feature confidential information of Company, Metaldyne or any of their respective Subsidiaries, including but not limited to information relating to customers, development programs, costs, marketing, trading, investment, sales activities, promotion, credit and financial data, financing methods, plans or the business and affairs of Company, Metaldyne or any of their respective subsidiaries generally, unless required to do so by applicable law or court order, subpoena or decree or otherwise required by law, with reasonable evidence of such determination promptly provided to Company. The preceding sentence of this Section 6.7 paragraph (d) shall not apply to information which is unreasonablenot unique to Company, arbitrary Metaldyne or against any of their respective subsidiaries or which is generally known to the industry or the public policyother than as a result of Executive’s breach of this covenant. Executive agrees that upon termination of employment with Company for any reason, then a lesser Executive will return to Company immediately all memoranda, books, papers, plans, information, letters and other data, and all copies thereof or therefrom, in any way relating to the business of Company, Metaldyne or any of their respective subsidiaries, except that Executive may retain personal notes, notebooks and diaries. Executive further agrees that Executive will not retain or use for Executive’s account at any time periodany trade names, geographical area, business limitation trademark or other relevant feature which is determined by such court to be reasonableproprietary business designation used or owned in connection with the business of Company, not arbitrary and not against public policy may be enforced against the applicable partyMetaldyne or any of their respective subsidiaries.
(e) The It is expressly understood and agreed that although Executive and Company shall use its commercially reasonable efforts consider the restrictions contained in this Section 11 to obtain be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the agreement of the Subsidiaries of the Company to time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any tribunal of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
(f) As a condition to the receipt of any benefits described in this Agreement, Executive shall be required to execute an agreement pursuant to which Executive releases any claims he may have against Company, Metaldyne or any of their respective subsidiaries and agrees to the continuing enforceability of the restrictive covenants of this Agreement.
(g) This Section 6.7 in form 11 will survive the termination of the Term of Employment and content reasonably satisfactory to Newcothe termination of this Agreement.
Appears in 2 contracts
Samples: Employment Agreement (Metaldyne Corp), Employment Agreement (Metaldyne Corp)
Non-Competition; Non-Solicitation; Confidentiality. (a) For While the Recipient is employed by the Company and for a period of one (1) year after the Recipient’s Separation from Service for any reason (the Closing Date until “Restricted Period”), the fifth (5th) anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, Recipient will not directly or indirectly:
(i) engage in any business or enterprise (whether as owner, ownpartner, manageofficer, operatedirector, control or participate in the ownershipemployee, managementconsultant, operation or control of any businessinvestor, whether in corporate, proprietorship or partnership form lender or otherwise, engaged in except as the Business holder of not more than one percent (1%) of the outstanding stock of a publicly-held company), that develops, manufactures, markets or sells any product or service that otherwise competes with any product or service developed, manufactured, marketed or sold or, to the Business Recipient’s knowledge, planned to be developed, manufactured, marketed or sold, by II-VI or its Subsidiaries while the Recipient was employed by the Company, within the United States of America and/or any other country within which II-VI or its Subsidiaries have customers or prospective customers.
(a “Restricted Business”). The ii) (A) solicit for the purpose of selling or distributing any products or services that are the same or similar to those developed, manufactured, marketed or sold by II-VI or its Subsidiaries, (1) any customers of II-VI or its Subsidiaries, (2) any prospective customers known by the Recipient to have been solicited by II-VI or its Subsidiaries within the twelve (12) months prior to the Recipient’s Separation from Service, or (3) any distributors, sales agents or other third-parties hereto specifically acknowledge and agree that the remedy at law for any breach who sell to or refer potential customers in need of the foregoing will be inadequate types of products and services produced, marketed, licensed, sold or provided by II-VI or its Subsidiaries who have become known to the Recipient as a result of his/her employment with the Company, or (B) induce or attempt to induce any vendor, supplier, licensee or other business relation of II-VI or its Subsidiaries to cease or restrict doing business with II-VI or its Subsidiaries, or in any way interfere with the relationship between any such vendor, supplier, licensee or business relation and II-VI or its Subsidiaries.
(iii) either alone or in association with others (A) solicit, or permit any organization directly or indirectly controlled by the Recipient to solicit, any employee of II-VI or its Subsidiaries to leave the employ of II-VI or its Subsidiaries, or (B) solicit for employment, hire or engage as an independent contractor, or permit any organization directly or indirectly controlled by the Recipient to solicit for employment, hire or engage as an independent contractor, any person who was employed by II-VI or its Subsidiaries at any time during the term of the Recipient’s employment with the Company; provided that Newco, in addition this clause (B) shall not apply to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity individual whose employment with II-VI or its Subsidiaries has been terminated for a period of proving actual damage one year or posting any bond whatsoeverlonger.
(b) For a period from The Recipient acknowledges that certain materials, including information, data, technology and other materials relating to customers, programs, costs, marketing, investment, sales activities, promotion, credit and financial data, manufacturing processes, financing methods, plans or the Closing Date business and affairs of II-VI and its Subsidiaries constitute proprietary confidential information and trade secrets. Accordingly, the Recipient will not at any time during or after the Recipient’s employment with the Company disclose or use for the Recipient’s own benefit or purposes or the benefit or purposes of any other person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise, other than the Company, any proprietary confidential information or trade secrets; provided that the foregoing shall not apply to information which is not unique to II-VI and its Subsidiaries or which is generally known to the fifth (5th) anniversary industry or the public other than as a result of the Closing DateRecipient’s breach of this covenant. The Recipient agrees that, neither upon the Company nor Recipient’s Separation from Service for any reason, the Recipient will immediately return to II-VI all property of II-VI and its Subsidiaries shall: (i) causeincluding all memoranda, solicitbooks, induce technical and/or lab notebooks, customer product and pricing data, papers, plans, information, letters and other data, and all copies thereof or encourage therefrom, which in any Employees way relate to the business of II-VI and its Subsidiaries, except that the Recipient may retain personal items. The Recipient further agrees that the Recipient will not retain or use for the Recipient’s account at any time any trade names, trademark or other proprietary business designation used or owned in connection with the business of II-VI and its Subsidiaries. The Restricted Period will be tolled during and for any period of time during which the Recipient is in violation of the Company to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship.
(c) The restrictive covenants and undertakings contained in this Section 6.7 relate to matters which are of a special, unique 13 and extraordinary character and a violation of any of the terms of this Section 6.7 will cause irreparable injury to Newco, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach period of this Section 6.7 will time which may be inadequate. Therefore, Newco will be entitled necessary to secure an order of court or injunction, restraining order either preliminary or other equitable relief from any court of competent jurisdiction permanent, to enforce such covenants, such that the cumulative time period during which the Recipient is in compliance with the event of any breach of this restrictive covenants contained in Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law or in equity13 will not exceed the one (1)-year period set forth above.
(d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement of the Subsidiaries of the Company to the provisions of this Section 6.7 in form and content reasonably satisfactory to Newco.
Appears in 2 contracts
Samples: Restricted Share Award Agreement (Ii-Vi Inc), Restricted Share Award Agreement (Ii-Vi Inc)
Non-Competition; Non-Solicitation; Confidentiality. (a) For a period from the Closing Date until the fifth (5th) anniversary Each of the Closing DateSeller and persons set forth on Schedule 6.12(a) of the Disclosure Schedules (each, neither the Company nor any of its Subsidiaries shalla “Non-Competition Party”) shall not, directly or indirectly, for the period of time commencing on the Closing Date through the period of time set forth opposite their respective names on Schedule 6.12(a) of the Disclosure Schedules, own, manage, engage in, operate, control control, work for, consult with, render services for, do business with, maintain any interest in (proprietary, financial or otherwise) or participate in the ownership, management, operation or control of of, any business, whether in corporate, proprietorship or partnership form or otherwise, engaged in the Business business of constructing, owning or that otherwise competes with operating corn ethanol plants (the Business (a “Restricted Business”). The parties hereto specifically acknowledge and agree ; provided, however, that the remedy at law for any breach restrictions contained in this Section 6.12(a) shall not restrict the acquisition by the Seller or a Non-Competition Party, directly or indirectly, of less than 2% of the foregoing will be inadequate and that Newco, outstanding capital stock of any publicly traded company engaged in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoeverRestricted Business.
(b) For Each of the Seller, each Non-Competition Party and each person set forth on Schedule 6.12(b) of the Disclosure Schedules (each, a “Non-Solicit Party”) agrees it, he or she shall not, and shall cause, if applicable, their directors, officers, employees and Affiliates not to, directly or indirectly, for the period from of time commencing on the Closing Date to through the fifth (5thperiod of time set forth opposite their respective names on Schedule 6.12(b) anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shallDisclosure Schedules: (i) cause, solicit, induce or encourage any Employees employees of the Company to leave such employment or hire, hire or employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier supplier, or licensor of the Business Company (including any existing or former customer of the Company and any Person that becomes a client or customer of the Business Company after the Closing) or any other Person who has a material business relationship with the BusinessCompany, to terminate or modify any such actual or prospective relationship.
(c) The covenants From and undertakings contained after the Closing Date, Seller, each Non-Competition Party and each Non-Solicit Party agrees that he, she or it shall not and shall cause, if applicable, their directors, officers, employees and Affiliates not to, directly or indirectly, disclose, reveal, divulge or communicate to any Person other than authorized officers, directors and employees of Intermediate LLC or its Subsidiary or use or otherwise exploit for its own benefit or for the benefit of anyone other than Intermediate LLC or its Subsidiary, any Confidential Information (as defined below). Seller, each Non-Competition Party and each Non-Solicit Party agrees he, she or it shall not have any obligation to keep confidential (or cause its officers, directors or Affiliates to keep confidential) any Confidential Information if and to the extent disclosure thereof is specifically required by applicable Law; provided, however, that in this Section 6.7 relate the event disclosure is required by applicable Law, such Seller, Non-Competition Party or Non-Solicit Party shall, to matters which are the extent reasonably possible, provide the Company with prompt notice of a special, unique and extraordinary character and a violation of such requirement prior to making any of disclosure so that the terms Company may seek an appropriate protective order. For purposes of this Section 6.7 will cause irreparable injury 6.12(c), “Confidential Information” means (i) the names or identity of any direct or indirect member of the Seller (a “Member”) and (ii) any information with respect to NewcoIntermediate LLC, the amount Company and its Subsidiary and, including methods of which will operation, customer lists, products, prices, fees, costs, Technology, inventions, Trade Secrets, know-how, Software, marketing methods, plans, personnel, suppliers, competitors, markets or other specialized information or proprietary matters. “Confidential Information” does not include, and there shall be impossible no obligation hereunder with respect to, information that (i) is generally available to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach public on the date of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an injunction, restraining order Agreement or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law or in equity.
(dii) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement of the Subsidiaries of the Company becomes generally available to the provisions public other than as a result of this Section 6.7 in form and content reasonably satisfactory to Newcoa disclosure not otherwise permissible hereunder.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Hawkeye Holdings, Inc.), Membership Interest Purchase Agreement (Hawkeye Holdings, Inc.)
Non-Competition; Non-Solicitation; Confidentiality. (a) For Executive represents that acceptance of employment under this Agreement and performance under this Agreement are not in violation of any restrictions or covenants under the terms of any other agreements to which Executive is a period from party.
(b) Executive acknowledges and recognizes the Closing Date until the fifth (5th) anniversary highly competitive nature of the Closing Datebusiness of Company and accordingly agrees that, neither in consideration of this Agreement, the rights conferred hereunder, and any payment hereunder, during the Term of Employment and for the six (6) month period following the termination of Executive's employment with Company, for any reason ("Non-Compete Term"), Executive shall not engage, either directly or indirectly, as a principal for Executive's own account or jointly with others, or as a stockholder in any corporation or joint stock association, or as a partner or member of a general or limited liability entity, or as an employee, officer, director, agent, consultant or in any other advisory capacity in any business other than Company nor any or its subsidiaries which designs, develops, manufacturers, distributes, sells or markets the type of products or services sold, distributed or provided by Company or its Subsidiaries shallsubsidiaries during the two (2) year period prior to the date of termination (the "Business"); provided that nothing herein shall prevent Executive from owning, directly or indirectly, ownnot more than five percent (5%) of the outstanding shares of, manageor any other equity interest in, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, entity engaged in the Business and listed or that otherwise competes with the Business (traded on a “Restricted Business”). The parties hereto specifically acknowledge and agree that the remedy at law for any breach of the foregoing will be inadequate and that Newco, national securities exchanges or in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoever.
(b) For a period from the Closing Date to the fifth (5th) anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall: (i) cause, solicit, induce or encourage any Employees of the Company to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipan over-the-counter securities market.
(c) The covenants During the Non-Compete Term, Executive shall not (i) directly or indirectly employ or solicit, or receive or accept the performance of services by, any active employee of Company or any of its subsidiaries who is employed primarily in connection with the Business, except in connection with general, non-targeted recruitment efforts such as advertisements and undertakings contained job listings, or directly or indirectly induce any employee of Company to leave Company, or assist in this Section 6.7 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms foregoing, or (ii) solicit for business (relating to the Business) any person who is a customer or former customer of this Section 6.7 will cause irreparable injury Company or any of its subsidiaries, unless such person shall have ceased to Newco, the amount have been such a customer for a period of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law or in equityleast six (6) months.
(d) The parties hereto agree that, if Executive shall not at any court time (whether during or after his employment with Company) disclose or use for Executive's own benefit or purposes or the benefit or purposes of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise other than Company and any of its subsidiaries, any trade secrets, information, data, or other confidential information of the Company, including but not limited to, information relating to customers, development programs, costs, marketing, trading, investment, sales activities, promotion, credit and financial data, financing methods, plans or the business and affairs of Company generally, or of any subsidiary of Company, unless required to do so by applicable law or court order, subpoena or decree or otherwise required by law, with reasonable evidence of such determination promptly provided to Company. The preceding sentence of this Section 6.7 paragraph (d) shall not apply to information which is unreasonablenot unique to Company or which is generally known to the industry or the public other than as a result of Executive's breach of this covenant. Executive agrees that upon termination of employment with Company for any reason, arbitrary Executive will return to Company immediately all memoranda, books, papers, plans, information, letters and other data, and all copies thereof or against public policytherefrom, then a lesser in any way relating to the business of Company and its subsidiaries, except that Executive may retain personal notes, notebooks and diaries. Executive further agrees that Executive will not retain or use for Executive's account at any time periodany trade names, geographical area, business limitation trademark or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against proprietary business designation used or owned in connection with the applicable partybusiness of Company or its subsidiaries.
(e) The It is expressly understood and agreed that although Executive and Company shall use its commercially reasonable efforts consider the restrictions contained in this Section 13 to obtain be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the agreement of the Subsidiaries of the Company to time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any tribunal of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
(f) As a condition to the receipt of any benefits described in this Agreement, Executive shall be required to execute an agreement pursuant to which Executive releases any claims he may have against Company and agrees to the continuing enforceability of the restrictive covenants of this Agreement.
(g) This Section 6.7 in form and content reasonably satisfactory to Newco13 will survive the termination of this Agreement.
Appears in 2 contracts
Samples: Employment Agreement (Metaldyne Corp), Employment Agreement (Er Acquisition Corp)
Non-Competition; Non-Solicitation; Confidentiality. (a) For While the Recipient is employed by the Company (including its Subsidiaries) and for a period of one (1) year after the Recipient’s Separation from Service for any reason (the Closing Date until “Restricted Period”), the fifth (5th) anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, Recipient will not directly or indirectly:
(i) engage in any business or enterprise (whether as owner, ownpartner, manageofficer, operatedirector, control or participate in the ownershipemployee, managementconsultant, operation or control of any businessinvestor, whether in corporate, proprietorship or partnership form lender or otherwise, engaged in except as the Business holder of not more than one percent (1%) of the outstanding stock of a publicly-held company), that develops, manufactures, markets or sells any product or service that otherwise competes with any product or service developed, manufactured, marketed or sold or, to the Business (Recipient’s knowledge, planned to be developed, manufactured, marketed or sold, by II-VI or its Subsidiaries while the Recipient was employed by the Company or a “Restricted Business”). The parties hereto specifically acknowledge and agree that Subsidiary, within the remedy at law for United States of America, and/or any breach other country within which II-VI or its Subsidiaries have customers or prospective customers as of the foregoing will be inadequate date of such Separation from Service;
(ii) (A) solicit for the purpose of selling or distributing any products or services that are the same or similar to those developed, manufactured, marketed or sold by II-VI or its Subsidiaries, (1) any customers of II-VI or its Subsidiaries, (2) any prospective customers known by the Recipient to have been solicited by II-VI or its Subsidiaries within the twelve (12) months prior to the Recipient’s Separation from Service, or (3) any distributors, sales agents or other third-parties who sell to or refer potential customers in need of the types of products and services produced, marketed, licensed, sold or provided by II-VI or its Subsidiaries who have become known to the Recipient as a result of his/her employment with the Company (including its Subsidiaries), or (B) induce or attempt to induce any vendor, supplier, licensee or other business relation of II-VI or its Subsidiaries to cease or restrict doing business with II-VI or its Subsidiaries, or in any way interfere with the relationship between any such vendor, supplier, licensee or business relation and II-VI or its Subsidiaries; or
(iii) either alone or in association with others (A) solicit, or permit any organization directly or indirectly controlled by the Recipient to solicit, any employee of II-VI or its Subsidiaries to leave the employ of II-VI or its Subsidiaries, or (B) solicit for employment, hire or engage as an independent contractor, or permit any organization directly or indirectly controlled by the Recipient to solicit for employment, hire or engage as an independent contractor, any person who was employed by II-VI or its Subsidiaries at any time during the term of the Recipient’s employment with the Company or a Subsidiary; provided that Newco, in addition this clause (B) shall not apply to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity individual whose employment with II-VI or its Subsidiaries has been terminated for a period of proving actual damage one (1) year or posting any bond whatsoeverlonger.
(b) For The Recipient acknowledges that certain materials, including information, data, technology and other materials relating to customers, programs, costs, marketing, investment, sales activities, promotion, credit and financial data, manufacturing processes, financing methods, plans or the business and affairs of II-VI and its Subsidiaries constitute proprietary confidential information and trade secrets. Accordingly, the Recipient will not at any time during or after the Recipient’s employment with the Company or a period from Subsidiary disclose or use for the Closing Date Recipient’s own benefit or purposes or the benefit or purposes of any other person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise, other than the Company (including its Subsidiaries), any proprietary confidential information or trade secrets; provided that the foregoing shall not apply to information which is not unique to II-VI and its Subsidiaries or which is generally known to the fifth (5th) anniversary industry or the public other than as a result of the Closing DateRecipient’s breach of this covenant. The Recipient agrees that, neither upon the Company nor Recipient’s Separation from Service for any reason, the Recipient will immediately return to II-VI all property of II-VI and its Subsidiaries shall: (i) causeSubsidiaries, solicitincluding all memoranda, induce books, technical and/or lab notebooks, customer product and pricing data, papers, plans, information, letters and other data, and all copies thereof or encourage therefrom, which in any Employees way relate to the business of II-VI and its Subsidiaries, except that the Company to leave such employment Recipient may retain personal items. The Recipient further agrees that the Recipient will not retain or hireuse for the Recipient’s account at any time any trade names, employ trademark or otherwise engage any such individual; other proprietary business designation used or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) or any other Person who has a material business relationship owned in connection with the Business, to terminate or modify any such actual or prospective relationshipbusiness of II-VI and its Subsidiaries.
(c) The Restricted Period will be tolled during and for any period of time during which the Recipient is in violation of the restrictive covenants and undertakings contained in this Section 6.7 relate to matters which are of a special, unique 13 and extraordinary character and a violation of any of the terms of this Section 6.7 will cause irreparable injury to Newco, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach period of this Section 6.7 will time which may be inadequate. Therefore, Newco will be entitled necessary to secure an order of court or injunction, restraining order either preliminary or other equitable relief from any court of competent jurisdiction permanent, to enforce such covenants, such that the cumulative time period during which the Recipient is in compliance with the event of any breach of this restrictive covenants contained in Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law or in equity13 will not exceed the one (1)-year period set forth above.
(d) The parties hereto agree thatNothing herein is intended to or shall limit, prevent, impede or interfere with the Recipient’s non-waivable right, without prior notice to the Company, to provide information to the government, participate in investigations, testify in proceedings regarding the Company’s past or future conduct, or engage in any activities protected under whistleblower statutes, or to receive and fully retain a monetary award from a government-administered whistleblower award program for providing information directly to a government agency. Further, the Recipient understands that pursuant to the Defend Trade Secrets Act of 2016, the Recipient shall not be held criminally, or civilly, liable under any Federal or State Trade secret law for the disclosure of a trade secret that is made in confidence either directly or indirectly to a Federal, State, or local government official, or an attorney, for the sole purpose of reporting, or investigating, a violation of law. Moreover, the Recipient understands that he or she may disclose trade secrets in a complaint, or other document, filed in a lawsuit, or other proceeding, if any court of competent jurisdiction in such filing is made under seal. Finally, the Recipient understands that if he or she files a final nonappealable judgment determines that lawsuit alleging retaliation by the Company for reporting a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement suspected violation of the Subsidiaries of law, the Company Recipient may disclose the trade secret to the provisions of this Section 6.7 attorney and use the trade secret in form and content reasonably satisfactory to Newcothe court proceeding.
Appears in 2 contracts
Samples: Performance Share Unit Award Agreement (Ii-Vi Inc), Performance Share Unit Award Agreement (Ii-Vi Inc)
Non-Competition; Non-Solicitation; Confidentiality. (a) For While the Recipient is employed by the Company (including its Subsidiaries) and for a period of one (1) year after the Recipient’s Separation from Service for any reason (the Closing Date until “Restricted Period”), the fifth (5th) anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, Recipient will not directly or indirectly:
(i) engage in any business or enterprise (whether as owner, ownpartner, manageofficer, operatedirector, control or participate in the ownershipemployee, managementconsultant, operation or control of any businessinvestor, whether in corporate, proprietorship or partnership form lender or otherwise, engaged in except as the Business holder of not more than one percent (1%) of the outstanding stock of a publicly-held company), that develops, manufactures, markets or sells any product or service that otherwise competes with any product or service developed, manufactured, marketed or sold or, to the Business (Recipient’s knowledge, planned to be developed, manufactured, marketed or sold, by II-VI or its Subsidiaries while the Recipient was employed by the Company or a “Restricted Business”). The parties hereto specifically acknowledge and agree that Subsidiary, within the remedy at law for United States of America, and/or any breach other country within which II-VI or its Subsidiaries have customers or prospective customers as of the foregoing will be inadequate date of such Separation from Service;
(ii) (A) solicit for the purpose of selling or distributing any products or services that are the same or similar to those developed, manufactured, marketed or sold by II-VI or its Subsidiaries, (1) any customers of II-VI or its Subsidiaries, (2) any prospective customers known by the Recipient to have been solicited by II-VI or its Subsidiaries within the twelve (12) months prior to the Recipient’s Separation from Service, or (3) any distributors, sales agents or other third-parties who sell to or refer potential customers in need of the types of products and services produced, marketed, licensed, sold or provided by II-VI or its Subsidiaries who have become known to the Recipient as a result of his/her employment with the Company (including its Subsidiaries), or (B) induce or attempt to induce any vendor, supplier, licensee or other business relation of II-VI or its Subsidiaries to cease or restrict doing business with II-VI or its Subsidiaries, or in any way interfere with the relationship between any such vendor, supplier, licensee or business relation and II-VI or its Subsidiaries; or
(iii) either alone or in association with others (A) solicit, or permit any organization directly or indirectly controlled by the Recipient to solicit, any employee of II-VI or its Subsidiaries to leave the employ of II-VI or its Subsidiaries, or (B) solicit for employment, hire or engage as an independent contractor, or permit any organization directly or indirectly controlled by the Recipient to solicit for employment, hire or engage as an independent contractor, any person who was employed by II-VI or its Subsidiaries at any time during the term of the Recipient’s employment with the Company or a Subsidiary; provided that Newco, in addition this clause (B) shall not apply to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity individual whose employment with II-VI or its Subsidiaries has been terminated for a period of proving actual damage one (1) year or posting any bond whatsoeverlonger.
(b) For The Recipient acknowledges that certain materials, including information, data, technology and other materials relating to customers, programs, costs, marketing, investment, sales activities, promotion, credit and financial data, manufacturing processes, financing methods, plans or the business and affairs of II-VI and its Subsidiaries constitute proprietary confidential information and trade secrets. Accordingly, the Recipient will not at any time during or after the Recipient’s employment with the Company or a period from Subsidiary disclose or use for the Closing Date Recipient’s own benefit or purposes or the benefit or purposes of any other person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise, other than the Company (including its Subsidiaries), any proprietary confidential information or trade secrets; provided that the foregoing shall not apply to information which is not unique to II-VI and its Subsidiaries or which is generally known to the fifth (5th) anniversary industry or the public other than as a result of the Closing DateRecipient’s breach of this covenant. The Recipient agrees that, neither upon the Company nor Recipient’s Separation from Service for any reason, the Recipient will immediately return to II-VI all property of II-VI and its Subsidiaries shall: (i) causeSubsidiaries, solicitincluding all memoranda, induce books, technical and/or lab notebooks, customer product and pricing data, papers, plans, information, letters and other data, and all copies thereof or encourage therefrom, which in any Employees way relate to the business of II-VI and its Subsidiaries, except that the Company to leave such employment Recipient may retain personal items. The Recipient further agrees that the Recipient will not retain or hireuse for the Recipient’s account at any time any trade names, employ trademark or otherwise engage any such individual; other proprietary business designation used or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) or any other Person who has a material business relationship owned in connection with the Business, to terminate or modify any such actual or prospective relationshipbusiness of II-VI and its Subsidiaries.
(c) The Restricted Period will be tolled during and for any period of time during which the Recipient is in violation of the restrictive covenants and undertakings contained in this Section 6.7 relate to matters which are of a special, unique 13 and extraordinary character and a violation of any of the terms of this Section 6.7 will cause irreparable injury to Newco, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach period of this Section 6.7 will time which may be inadequate. Therefore, Newco will be entitled necessary to secure an order of court or injunction, restraining order either preliminary or other equitable relief from any court of competent jurisdiction permanent, to enforce such covenants, such that the cumulative time period during which the Recipient is in compliance with the event of any breach of this restrictive covenants contained in Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law or in equity13 will not exceed the one (1)-year period set forth above.
(d) The parties hereto agree thatNothing herein is intended to or shall limit, prevent, impede or interfere with the Recipient’s non-waivable right, without prior notice to the Company, to provide information to the government, participate in investigations, testify in proceedings regarding the Company’s past or future conduct, or engage in any activities protected under whistleblower statutes, or to receive and fully retain a monetary award from a government-administered whistleblower award program for providing information directly to a government agency. Further, the Recipient understands that pursuant to the Defend Trade Secrets Act of 2016, the Recipient shall not be held criminally, or civilly, liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in confidence either directly or indirectly to a Federal, State, or local government official, or an attorney, for the sole purpose of reporting, or investigating, a violation of law. Moreover, the Recipient understands that he or she may disclose trade secrets in a complaint, or other document, filed in a lawsuit, or other proceeding, if any court of competent jurisdiction in such filing is made under seal. Finally, the Recipient understands that if he or she files a final nonappealable judgment determines that lawsuit alleging retaliation by the Company for reporting a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement suspected violation of the Subsidiaries of law, the Company Recipient may disclose the trade secret to the provisions of this Section 6.7 attorney and use the trade secret in form the court proceeding, so long as any document containing the trade secret is filed under seal and content reasonably satisfactory the Recipient does not disclose the trade secret except pursuant to Newcocourt order.
Appears in 2 contracts
Samples: Performance Share Unit Award Agreement (Ii-Vi Inc), Performance Share Unit Award Agreement (Ii-Vi Inc)
Non-Competition; Non-Solicitation; Confidentiality. (a) For a period of five (5) years from the Closing Date until the fifth (5th) anniversary of and after the Closing Date, neither Sellers shall not, and shall cause Sellers’ Affiliates not to, and shall not use any Confidential Information to, without the Company nor any advance, express written consent of its Subsidiaries shallBuyer, directly or indirectly, own, establish, manage, engage in, operate, control control, work for, consult with, render services for, do business with, maintain any interest in (proprietary, financial or otherwise) or participate in the ownership, establishment, management, operation or control of of, any business, whether in corporate, proprietorship or partnership form or otherwise, engaged in the Business wealth management, insurance, or retirement planning services, record keeping and administration services related to retirement planning services, brokerage, or investment advisor activities or that otherwise competes with with, or is likely to compete with, the Business business of each of the Company and the Subsidiaries or any of their respective Affiliates as conducted as of the Closing Date, and as it could reasonably be expected to be conducted in the future (a “Restricted Business”). The parties hereto specifically acknowledge and agree ) anywhere in the United States of America; provided, that the remedy at law for any breach restrictions contained in this Section 6.10(a) shall not restrict the acquisition by Sellers, directly or indirectly, of less than 2% of the foregoing will outstanding capital stock of any publicly traded company engaged in a Restricted Business. Notwithstanding the foregoing, a Seller shall not be inadequate and in violation of this Section 6.10(a): (i) simply by virtue of Seller’s status as a shareholder, partner, director, officer, employee or representative of Honkamp Xxxxxxx, so long as Honkamp Xxxxxxx does not participate in a Restricted Business or (ii) by engaging in any business that Newco, in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoeveris not a Restricted Business.
(b) For a period of five (5) years from the Closing Date to the fifth (5th) anniversary of and after the Closing Date, neither the Company nor any of its Subsidiaries shallSellers shall not, and shall cause Sellers’ Affiliates not to, directly or indirectly: (i) (A) cause, solicit, induce or encourage any Employees employee of Buyer, the Company and the Subsidiaries or any of their Affiliates, or any individual who was employed by Buyer, the Company and the Subsidiaries or any of their Affiliates at any time within six (6) months before such solicitation, inducement or encouragement to leave such employment or (B) hire, employ or otherwise engage any such employee or individual; or (ii) cause, solicit, induce or encourage any material former, actual or prospective client, customer, supplier supplier, registered representative, investment adviser representative, or licensor of Buyer, the Business (including any existing or former customer of Company, the Company and any Person that becomes a client or customer of the Business after the Closing) Subsidiaries or any other Person who has a material business relationship with any of the BusinessCompany and the Subsidiaries, to do business with a Restricted Business or terminate or materially modify any such actual or prospective relationshiprelationship with any of the Company and the Subsidiaries.
(c) From and after the Closing Date, each Seller and the Sellers’ Representative shall not and shall cause such Seller’s and Sellers’ Representative’s Affiliates not to, directly or indirectly, disclose, reveal, divulge or communicate to any Person other than authorized officers, directors and employees of Buyer or any of the Company and the Subsidiaries or use or otherwise exploit for its own benefit or for the benefit of anyone other than the Company and the Subsidiaries, any Confidential Information. Neither any Seller nor Sellers’ Representative shall have any obligation to keep confidential (or cause such Seller’s or Sellers’ Representative’s Affiliates to keep confidential) any Confidential Information if and to the extent disclosure thereof is specifically required by applicable Law; provided, that in the event disclosure is required by applicable Law, such Seller or Sellers’ Representative shall, to the extent reasonably possible, provide Buyer with prompt notice of such requirement prior to making any disclosure so that Buyer may seek an appropriate protective order and cooperate with Buyer concerning any such protective order sought.
(d) From and after the Closing Date, Sellers shall not and shall cause Sellers’ Affiliates not to, directly or indirectly, disparage Buyer, the Company and the Subsidiaries or any of their respective Affiliates in any way that adversely and substantially impacts the goodwill, reputation or business relationships of Buyer, the Company and the Subsidiaries or any of their respective Affiliates with the public generally, or with any of their customers, suppliers, independent contractors, or employees. From and after the Closing Date, (i) Buyer shall not and shall cause Buyer’s Affiliates not to, directly or indirectly, disparage Sellers, Honkamp Xxxxxxx or any of their respective Affiliates in any way that adversely and substantially impacts the goodwill, reputation or business relationships of Sellers, Honkamp Xxxxxxx or any of their respective Affiliates with the public generally, or with any of their customers, suppliers, independent contractors, or employees and (ii) Sellers and the Sellers’ Representative shall not and shall cause their respective Affiliates not to, directly or indirectly, disparage Buyer, Blucora, Inc. or any of their respective Affiliates in any way that adversely and substantially impacts the goodwill, reputation or business relationships of Buyer, Blucora, Inc. or any of their respective Affiliates with the public generally, or with any of their customers, suppliers, independent contractors, or employees.
(e) The covenants and undertakings contained in this Section 6.7 6.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 6.7 6.10 will cause irreparable injury to NewcoBuyer, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 6.7 6.10 will be inadequate. Therefore, Newco Buyer will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.76.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 6.7 6.10 are cumulative and in addition to any other rights and remedies which Newco Buyer may have hereunder or at law or in equity.
(df) In the event of any actual or threatened violation of the covenants and obligations under this Section 6.10 by Sellers or the Company, Buyer shall be entitled to recover from Sellers or the Company its reasonable attorneys’ fees and all costs and expenses associated with the enforcement of any provision of this Section 6.10 in addition to any other available legal or equitable remedies. If any court of competent jurisdiction finds that Sellers or the Company has breached any of its covenants or obligations under this Section 6.10, the time period during which such covenants and obligations are effective shall be suspended and shall not run in favor of Sellers or the Company from the date of such breach until the date when such breach is cured or remedied.
(g) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 6.10 is unreasonable, arbitrary arbitrary, unenforceable, or against public policy, then a lesser time periodperiod of time, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary arbitrary, enforceable, and not against public policy may shall be enforced against the applicable party.
(e) The . Sellers and the Company shall use its commercially reasonable efforts acknowledge that their covenants and obligations in this Section 6.10 have been a material inducement for Buyer to obtain consummate this Agreement. Accordingly, Seller and the agreement Company irrevocably waive any right existing as of the Subsidiaries of Closing Date or arising in the Company future to the provisions of (i) file any declaratory judgment or similar action seeking to declare unenforceable any covenant or obligations under this Section 6.7 in form and content reasonably satisfactory 6.10 or challenge the validity of such covenants or obligations; (ii) otherwise contest the enforceability of any such covenants or obligations as being unreasonable or unenforceable; or (iii) assert any defenses to Newcoany action or effort by Buyer to enforce any such covenants or obligations based on their reasonableness.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Blucora, Inc.), Stock Purchase Agreement (Blucora, Inc.)
Non-Competition; Non-Solicitation; Confidentiality. (a) For a period from the Closing Date date hereof until the fifth (5th) anniversary of the Closing DateDate (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall, directly or indirectly, Sellers shall not own, manage, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, engaged in the Business; provided, however, that the restrictions contained in this Section 8.5(a) shall not (i) restrict the acquisition by any Seller, directly or indirectly, of less than 2% of the outstanding capital stock of any publicly traded company engaged in the Business or that otherwise competes with (ii) restrict the Business (a “Restricted Business”)ownership, management, operation, control or provision of services related to any Excluded Asset. The parties Parties hereto specifically acknowledge and agree that the remedy at law for any breach of the foregoing will be inadequate and that NewcoPurchaser, in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoever.
(b) For a period from During the Closing Date to Restricted Period, the fifth (5th) anniversary of the Closing DateSellers shall not, neither the Company nor any of its Subsidiaries shalldirectly or indirectly: (i) cause, solicit, induce or encourage any Transferred Employees or independent contractors of the Company Sellers who are or become independent contractors of Purchaser or its Affiliates to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier supplier, or licensor of the Sellers with respect to the Business (including any existing or former customer of the Company Sellers and any Person that becomes a client or customer of Purchaser with respect to the Business after the Closing) or any other Person who has a material business relationship with Sellers or Purchaser with respect to the Business, to divert, terminate or modify any such actual or prospective relationshiprelationship or (iii) take any action that is designed or intended to have the effect of discouraging any actual or prospective client, customer, supplier, or licensor of the Sellers with respect to the Business (including any existing or former customer of the Sellers and any Person that becomes a client or customer of Purchaser with respect to the Business after the Closing) from maintaining its business relationship with the Business; provided however, that the foregoing shall not restrict the inducement or encouragement of any client, customer, supplier, or licensor related to any Excluded Asset.
(c) From and after the date hereof, the Sellers shall not, directly or indirectly, disclose, reveal, divulge or communicate to any Person other than authorized officers, directors and employees of Purchaser or use or otherwise exploit for its own benefit or for the benefit of anyone other than Purchaser, any Confidential Information except (i) as specifically required by Law, (ii) in connection with any effort to enforce any rights or defend any claim under this Agreement or the Ancillary Documents or related to the Transactions, (iii) in connection with the Bankruptcy Cases if so requested under the Bankruptcy Code or Bankruptcy court local rules, and (iv) as necessary solely to wind down any of the Sellers’ estates or in connection with the enforcement of the rights of, or the defense of any Action against or involving any Seller or its officers, directors and Affiliates; provided, however, that in the event disclosure is allowable pursuant to the foregoing clause (i), the Sellers shall, to the extent reasonably possible and legally permissible, provide Purchaser with prompt notice of such requirement prior to making any disclosure so that Purchaser may seek, at its sole cost and expense, an appropriate protective order.
(d) From and after the date hereof, (i) Sellers shall not make, or cause to be made, any statement (whether oral or written) that disparages the reputation or business of the Business, the Purchaser or any of its Affiliates and (ii) Purchaser shall not, and shall cause its Affiliates not to, make, or cause to be made, any statement (whether oral or written) that disparages the reputation or business of the Sellers or any of their Affiliates; provided, however, that nothing in this Section 8.5(d) shall restrict any Person enforcing its rights hereunder or from testifying truthfully in any Action.
(e) The covenants and undertakings contained in this Section 6.7 8.5 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 6.7 8.5 will cause irreparable injury to Newcothe Parties, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. AccordinglyTherefore, the remedy at law for any breach of this Section 6.7 will be inadequate. Therefore, Newco Parties will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.78.5. The rights and remedies provided by this Section 6.7 8.5 are cumulative and in addition to any other rights and remedies which Newco the Parties may have hereunder or at law or in equity. In the event of a violation or breach by the Sellers of any agreement set forth in this Section 8.5, the term of the Restricted Period shall be extended by a period equal to the duration of such violation or breach.
(df) The parties covenants contained in this Section 8.5 and each provision hereof are severable and distinct covenants and provisions. The Parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 8.5 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable partyParty.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement of the Subsidiaries of the Company to the provisions of this Section 6.7 in form and content reasonably satisfactory to Newco.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Sonendo, Inc.), Asset Purchase Agreement (Biolase, Inc)
Non-Competition; Non-Solicitation; Confidentiality. (a) For a period of two (2) years from and after the Closing Date until (the fifth (5th) anniversary of the Closing Date“Covenant Term”), neither the Company nor any of Seller Parent shall not, and shall cause its Subsidiaries shallcontrolled Affiliates that are not individuals not to, directly or indirectly, own, manage, engage in, operate, control control, maintain any interest in (proprietary, financial or otherwise) or participate in the ownership, management, operation or control of of, any business, whether in corporate, proprietorship or partnership form or otherwise, engaged in the Business or that otherwise competes with the AP1000 Business (a “Restricted Business”). The parties hereto specifically acknowledge and agree ; provided, however, that the remedy at law for restrictions contained in this Section 6.3(a) shall not restrict Sellers or any breach of its controlled Affiliates from (i) collectively owning 10% or less of the foregoing will be inadequate and that Newcooutstanding securities of any publicly traded company engaged in the Restricted Business, in addition to (ii) collectively owning 5% or less of the outstanding securities of any other relief available to itPerson engaged in the Restricted Business, shall be entitled to temporary (iii) collectively owning an interest in any Person engaged in the Restricted Business if the Restricted Business of such Person generated 10% or less of such Person’s consolidated annual revenues in the last completed fiscal year of such Person or not more than $10,000,000 of such Person’s consolidated annual revenues in the last completed fiscal year of such Person or (iv) acquiring an interest in any Person that is engaged in the Restricted Business that generated more than 10% but less than 20% of its consolidated annual revenues in the last completed fiscal year if, within six (6) months of such acquisition Seller Parent or one of its controlled Affiliates enters into a definitive agreement providing for the disposition of such Restricted Business, and permanent injunctive relief without the necessity disposition of proving actual damage or posting any bond whatsoeversuch Restricted Business is completed within eighteen (18) months of such acquisition.
(b) For a period from the Closing Date Covenant Term, Seller Parent shall not, and shall cause its controlled Affiliates not to, and shall use its commercially reasonable efforts to cause its and its controlled Affiliates’ directors, officers and employees (collectively, the fifth (5th“Restricted Solicitors”) anniversary of the Closing Datenot to, neither the Company nor any of its Subsidiaries shall: (i) directly or indirectly, cause, solicit, induce or encourage any Employees employees of any of the Company or its Subsidiaries to leave such employment or hire, hire or employ or otherwise engage any such individual; provided, however, that this restriction shall not prohibit the solicitation, hiring or employment of any individual (i) whose employment was terminated by Purchaser or any of its Affiliates; provided that discussions between a Restricted Solicitor and such individual did not commence prior to the date of such termination; or (ii) causewho responds to a general solicitation through advertisements in newspapers or other media of general circulation advertising employment opportunities or contacts by an employee search firm, induce in each case to the extent that such advertisements or encourage search firms do not specifically target any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer employees of the Company or its Subsidiaries; provided that with respect to hiring and employment, this subclause (ii) shall not be applicable to any Person that becomes a client or customer Key Employee until the first anniversary of the Business after Closing Date. For the Closing) or any other Person who has a material business relationship with the BusinessCovenant Term, to terminate or modify any such actual or prospective relationship.
(c) The covenants Purchaser shall not, and undertakings contained in this Section 6.7 relate to matters which are of a specialshall cause its controlled Affiliates not to, unique and extraordinary character and a violation of any of the terms of this Section 6.7 will cause irreparable injury to Newco, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law or in equity.
(d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain cause its and its controlled Affiliates’ directors, officers and employees (collectively, the agreement “Restricted Purchaser Solicitors”) not to, directly or indirectly, cause, solicit, induce or encourage any employees of any of Seller Parent or its Subsidiaries to leave such employment or hire or employ such individual; provided, however, that this restriction shall not prohibit the solicitation, hiring or employment of any individual (i) whose employment was terminated by Seller Parent or any of its Affiliates; provided that discussions between a Restricted Purchaser Solicitor and such individual did not commence prior to the date of such termination; or (ii) who responds to a general solicitation through advertisements in newspapers or other media of general circulation advertising employment opportunities or contacts by an employee search firm, in each case to the extent that such advertisements or search firms do not specifically target any employees of Seller Parent or its Subsidiaries.
(c) From and after the Closing Date, Seller Parent shall not and shall cause its controlled Affiliates not to, and shall use its commercially reasonable efforts to cause its and its controlled Affiliates’ directors, officers and employees not to, directly or indirectly, disclose, reveal, divulge or communicate to any Person other than authorized officers, directors and employees of Purchaser or its Subsidiaries of (including the Company and its Subsidiaries) any Purchaser Confidential Information; provided that Seller Parent shall not have any obligation to keep confidential (or cause its controlled Affiliates or its or their directors, officers and employees to keep confidential) any Purchaser Confidential Information if and to the provisions extent disclosure thereof is required by applicable Law or applicable stock exchange listing rule or any Order; provided, however, that in the event disclosure is required by applicable Law or applicable stock exchange listing rule or any Order, Seller Parent shall, to the extent reasonably possible, provide Purchaser with prompt notice of such requirement prior to making any disclosure so that Purchaser may seek an appropriate protective order. For purposes of this Section 6.7 in form 6.3(c), “Purchaser Confidential Information” means any information with respect to the Business that the Company and content reasonably satisfactory its Subsidiaries have maintained and continue to Newcomaintain as confidential, including methods of operation, customer lists, products, prices, fees, costs, technology, inventions, trade secrets, know-how, software, marketing methods, plans, personnel, suppliers, competitors, markets or other specialized information or proprietary matters.
Appears in 1 contract
Non-Competition; Non-Solicitation; Confidentiality. (a) For Executive represents that acceptance of employment under this Agreement and performance under this Agreement are not in violation of any restrictions or covenants under the terms of any other agreements to which Executive is a period from party.
(b) Executive acknowledges and recognizes the Closing Date until the fifth (5th) anniversary highly competitive nature of the Closing Datebusiness of Company and accordingly agrees that, neither in consideration of this Agreement, the rights conferred hereunder, and any payment hereunder, during the Term of Employment and for the two year (2) year period following the termination of Executive's employment with Company, for any reason ("Non-Compete Term"), Executive shall not engage, either directly or indirectly, as an employee, as a partner or member of a limited liability entity, or as principal for Executive's own account or jointly with others, or as a stockholder in any corporation or joint stock association, in any business other than Company nor any or its subsidiaries which designs, develops, manufacturers, distributes, sells or markets the type of products or services sold, distributed or provided by Company or its Subsidiaries shallsubsidiaries during the two (2) year period prior to the date of termination (the "Business"); provided that nothing herein shall prevent Executive from owning, directly or indirectly, ownnot more than five percent (5%) of the outstanding shares of, manageor any other equity interest in, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, entity engaged in the Business and listed or that otherwise competes with the Business (traded on a “Restricted Business”). The parties hereto specifically acknowledge and agree that the remedy at law for any breach of the foregoing will be inadequate and that Newco, national securities exchanges or in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoever.
(b) For a period from the Closing Date to the fifth (5th) anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall: (i) cause, solicit, induce or encourage any Employees of the Company to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipan over-the-counter securities market.
(c) The covenants and undertakings contained During the Non-Compete Term, Executive shall not (1) directly or indirectly employ or solicit, or receive or accept the performance of services by, any active employee of Company or any of its subsidiaries who is employed primarily in this Section 6.7 relate connection with the Business, or directly or indirectly induce any employee of Company to matters which are of a specialleave Company, unique and extraordinary character and a violation of or assist in any of the terms foregoing except in connection with general, non-targeted recruitment efforts such as advertisements and job listings, or (2) solicit for business (relating to the Business) any person who is a customer or former customer of this Section 6.7 will cause irreparable injury Company or any of its subsidiaries, unless such person shall have ceased to Newco, the amount have been such a customer for a period of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law or in equityleast six (6) months.
(d) The parties hereto agree that, if Executive shall not at any court time (whether during or after his employment with Company) disclose or use for Executive's own benefit or purposes or the benefit or purposes of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise other than Company and any of its subsidiaries, any trade secrets, or other confidential information of the Company, including but not limited to relating to customers, development programs, costs, marketing, trading, investment, sales activities, promotion, credit and financial data, financing methods, plans or the business and affairs of Company generally, or of any subsidiary of Company, unless required to do so by applicable law or court order, subpoena or decree or otherwise required by law, with reasonable evidence of such determination promptly provided to Company. The preceding sentence of this Section 6.7 paragraph (d) shall not apply to information which is unreasonablenot unique to Company or which is generally known to the industry or the public other than as a result of Executive's breach of this covenant. Executive agrees that upon termination of employment with Company for any reason, arbitrary Executive will return to Company immediately all memoranda, books, papers, plans, information, letters and other data, and all copies thereof or against public policytherefrom, then a lesser in any way relating to the business of Company and its subsidiaries, except that Executive may retain personal notes, notebooks and diaries. Executive further agrees that Executive will not retain or use for Executive's account at any time periodany trade names, geographical area, business limitation trademark or other relevant feature which is determined proprietary business designation used or owned by such court to be reasonable, not arbitrary and not against public policy may be enforced against Company in connection with the applicable partybusiness of Company or its subsidiaries.
(e) The It is expressly understood and agreed that although Executive and Company shall use its commercially reasonable efforts consider the restrictions contained in this Section 13 to obtain be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the agreement of the Subsidiaries of the Company to time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any tribunal of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
(f) As a condition to the receipt of any benefits described in this Agreement, Executive shall be required to execute an agreement pursuant to which Executive releases any claims he may have against Company and agrees to the continuing enforceability of the restrictive covenants of this Agreement.
(g) This Section 6.7 13 will survive the termination of this Agreement. Notwithstanding the foregoing or anything else in form this Agreement to the contrary, this Section 13 shall automatically terminate and content reasonably satisfactory to Newcobe rendered null and void and of no further force or effect in the event that: (i) Executive is terminated without Cause, or (ii) Executive terminates his employment with Company for Good Reason; provided that Executive shall in no event be released from any prohibition enforceable at law or in equity against the unlawful use of confidential or propriety information, or other forms of unfair competition.
Appears in 1 contract
Samples: Employment Agreement (Trimas Corp)
Non-Competition; Non-Solicitation; Confidentiality. (a) For a period from the Closing Date until the fifth of two (5th2) anniversary of years after the Closing Date, neither and except as approved in writing by Purchaser, which approval may be withheld in its sole and absolute discretion, each of Xxxxxx X. Xxxxx and The Xxxxxx X. Xxxxx Living Trust shall not, and shall cause its Affiliates not to, engage in the Company nor family restaurant segment of the Business within two (2) miles of any existing or currently contemplated Restaurant, including Franchised Restaurants; provided, that, subject to the confidentiality obligations imposed under this Section 6.12, participation by Xxxxxx X. Xxxxx or any of its Subsidiaries shallhis Affiliates, directly or indirectly, own, manage, operate, control or participate in the ownership, management, operation or control management of Jason's Deli or Friendly Ice Cream Corporation shall be expressly permitted under the terms hereof. The holders of Options as of the date hereof shall not, and shall cause their Affiliates not to, engage in the family restaurant segment of the Business within two (2) miles of any businessexisting or currently contemplated Restaurant, whether in corporateincluding Franchised Restaurants for the period beginning on the Closing Date and ending on the earliest of (a) two (2) years after the Closing Date, proprietorship or partnership form or otherwise, engaged (b) in the Business case of voluntary termination of employment by such holder of Options, one (1) year after the date of such termination or that otherwise competes (c) in the case of involuntary termination of employment, the date upon which such holder of Options is no longer entitled to receive severance payment from the Company in connection with such termination. For a period of two (2) years after the Business Closing Date, each Seller (a “Restricted Business”)other than the Institutional Investors and their Affiliates) shall not, and shall cause his Affiliates not to, solicit for employment or hire any of the management level employees of the Company or any of its Subsidiaries. The parties hereto specifically acknowledge For the avoidance of doubt, the Institutional Investors and agree that the remedy at law for their Affiliates are not subject to any breach of the foregoing restrictions contained in this Section 6.12. Each Seller agrees that for a period of two (2) years after the Closing, such Seller will not disclose any confidential information obtained prior to the Closing regarding the Company or its Subsidiaries to any third party without the prior written consent of Purchaser or the Company (other than disclosures by employees who are Sellers in the course of performing their duties for the Company and its Subsidiaries); provided that a Seller may disclose any such information which (at the applicable time of determination) (i) has already been publicly disclosed (other than a wrongful disclosure by a Seller contrary to this Section 6.12), (ii) is no longer confidential (other than as a result of a wrongful disclosure by a Seller contrary to this Section 6.12), or (iii) a Seller is required to disclose pursuant to any applicable Law or in connection with any legal proceeding involving such Seller; provided, that such Seller (other than the Institutional Investors in connection with any disclosure required under any applicable Law) gives prompt notice of such requirement to Purchaser and takes reasonable steps to protect the confidentiality of such confidential information required to be inadequate and disclosed. Each Seller acknowledges that NewcoPurchaser may be irrevocably damaged if such covenant is not specifically enforced. Accordingly, each Seller agrees that, in addition to any other relief available to itwhich Purchaser may be entitled, shall Purchaser would be entitled to temporary and permanent seek to obtain injunctive relief (without the necessity of proving actual damage or posting any bond whatsoever.
(b) For a period from the Closing Date to the fifth (5th) anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall: (i) cause, solicit, induce or encourage any Employees of the Company to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship.
(c) The covenants and undertakings contained in this Section 6.7 relate to matters which are of a special, unique and extraordinary character and a violation requirement of any of the terms of this Section 6.7 will cause irreparable injury to Newco, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an injunction, restraining order or other equitable relief bond) from any a court of competent jurisdiction in for the event purposes of restraining the applicable Seller from any actual or threatened breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law or in equitysuch covenant.
(d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement of the Subsidiaries of the Company to the provisions of this Section 6.7 in form and content reasonably satisfactory to Newco.
Appears in 1 contract
Samples: Stock Purchase Agreement (Restaurant Co of Minnesota)
Non-Competition; Non-Solicitation; Confidentiality. (a) For a period from of one year commencing on the Closing Date until date of this agreement, the fifth (5th) anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shallConsultant shall not, directly or indirectly, ownengage or be interested in (as owner, managestockholder, operatepartner, control member, manager, lender, employee, agent, consultant or participate otherwise) any business or entity that engages, anywhere in the ownershipworld, management, operation in any business competitive with any business in which the Company or control any of any business, whether in corporate, proprietorship its subsidiaries is engaged or partnership form or otherwise, engaged in the Business or that otherwise competes with the Business (a “Restricted Business”). The parties hereto specifically acknowledge and agree that the remedy at law for any breach has under active consideration as of the foregoing will be inadequate date of this agreement. However, this section shall not prevent the Consultant from owning as an investment up to 2% of a class of equity securities issued by any corporation whose shares are publicly traded and that Newco, in addition registered under the Securities Exchange Act of 1934 or subject to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity Section 15(d) of proving actual damage or posting any bond whatsoeversuch Act.
(b) For a period from of one year commencing on the Closing Date to date of this agreement, the fifth (5th) anniversary Consultant shall not, directly or indirectly, employ or solicit for employment or consulting, on his own behalf or on behalf of any other person or entity, or otherwise encourage the resignation of, any employee of the Closing Date, neither the Company nor or any of its Subsidiaries shall: (i) causesubsidiaries, solicit, induce or encourage except that the Consultant may employ any Employees employee of the Company to leave such Company's corporate headquarters whose employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of is terminated by the Company and any Person that becomes a client or customer of who resigns without encouragement from the Business after the Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipConsultant.
(c) The covenants and undertakings contained Consultant shall not, for a period of five years after the end of the term of this agreement, disclose to anyone, or use in this Section 6.7 relate to matters which are of a special, unique and extraordinary character and a violation of competition with the Company or any of the terms of this Section 6.7 will cause irreparable injury to Newcoits subsidiaries, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition information with respect to any other rights and remedies which Newco may have hereunder non- public confidential or at law secret aspect of the business of the Company or in equityany of its subsidiaries.
(d) The parties hereto agree that, if any court Consultant acknowledges that the remedy at law for breach of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement of the Subsidiaries of the Company to the provisions of this Section 6.7 section 3 will be inadequate and that, in form addition to any other remedy the Company may have, it shall be entitled to an injunction restraining any breach or threatened breach, without any bond or other security being required and content reasonably satisfactory without the necessity of showing actual damages. If any court construes the covenant in this section 3 or any part thereof, to Newcobe unenforceable in any respect, the court may reduce the duration or area to the extent necessary so that the provision is enforceable, and the provision, as reduced, shall then be enforceable.
Appears in 1 contract
Non-Competition; Non-Solicitation; Confidentiality. (a) For a period from of [***] commencing on the Closing Date until (the fifth “Restricted Period”), except to the extent of performing under the Subcontract Agreements (5thor a similar subcontract agreement between Purchaser and Seller) anniversary of the Closing Dateor as requested by Seller under Section 6.1(b) above, neither the Company nor Seller shall not, and shall not permit any of its Subsidiaries shallAffiliates, to, directly or indirectly, ownengage in, manage, operateinvest in, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, engaged in otherwise operate in: [***] the Business or that otherwise competes with as the Business (a “Restricted Business”). The parties hereto specifically acknowledge and agree that same was conducted by Seller at any point during the remedy at law for any breach of [***] period immediately preceding the foregoing will be inadequate and that Newco, in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoeverClosing Date [***].
(b) For a period from During the Closing Date to the fifth (5th) anniversary of the Closing DateRestricted Period, neither the Company nor Seller shall not, and shall not permit any of its Subsidiaries shall: (i) causeAffiliates to, solicitdirectly or indirectly, induce induce, solicit or encourage any Employees of the Company to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier supplier, vendor, sales agent, or licensor distributor of the Business (including any existing to diminish, terminate or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) curtail their relationship with Purchaser or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipof its Affiliates.
(c) The covenants During the Restricted Period, Seller shall not, and undertakings contained in this Section 6.7 relate shall not permit any of its Affiliates to, directly or indirectly, hire or offer to matters which are of a special, unique and extraordinary character and a violation of hire any of the terms Transferred Employees (as defined below) or any subsequent employee of this Section 6.7 will cause irreparable injury to Newco, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided Business as conducted by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law or in equityPurchaser.
(d) The parties hereto agree thatFrom and after the Closing Date, if except with Purchaser’s prior written consent, Seller shall not (nor shall Seller permit any court of competent jurisdiction its respective Affiliates, directors, managers, partners, officers, shareholders, employees or agents), directly or indirectly, in a final nonappealable judgment determines that a specified time periodany capacity, a specified geographical areacommunicate, a specified business limitation publish or otherwise disclose to any other relevant feature Person, or use for the benefit of this Section 6.7 is unreasonableany Person, arbitrary any confidential or against public policyproprietary property, then a lesser time period, geographical area, business limitation knowledge or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against information of Purchaser or concerning the applicable partyBusiness or the Purchased Assets.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement of the Subsidiaries of the Company to the If any provision contained in this Section 6.4 is for any reason held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect any other provisions of this Section 6.7 6.4, but this Section 6.4 will be construed as if such invalid, illegal or unenforceable provision had never been contained herein. It is the intention of the parties that if any of the restrictions or covenants contained in form this Section 6.4 is held to cover a geographic area or to be of a length of time that is not permitted by applicable Law, or in any way construed to be too broad or to any extent invalid, such provision will not be construed to be null, void and content reasonably satisfactory of no effect, but, rather, the parties agree that a court of competent jurisdiction will construe, interpret, reform or judicially modify this Section 6.4 to Newcoprovide for a covenant having the maximum enforceable geographic area, time period and other provisions (not greater than those contained herein) as will be valid and enforceable under such applicable law.
Appears in 1 contract
Non-Competition; Non-Solicitation; Confidentiality. (a) For a period from commencing as of the Closing Effective Date and continuing until the fifth (5th) anniversary end of the Closing DateConsulting Period (the “Restricted Period”), neither the Company nor any of its Subsidiaries shallConsultant shall not, directly or indirectly, ownwithin the States of New Jersey, manageNew York, operateand Florida, control for compensation or participate otherwise engage or have any interest in any sole proprietorship, partnership, corporation, company, business or entity (whether as an employee, officer, director, partner, member, principal, agent, consultant or otherwise) that engages in commercial or consumer banking, provided, however, that the Consultant may continue to hold or acquire, solely as an investment, shares of capital stock or other equity securities of any company or other entity which are traded on any national securities exchange or are regularly quoted in the ownershipover-the-counter market, managementso long as Consultant does not control, operation acquire a controlling interest in, or become a member of a group which exercises direct or indirect control of more than five percent (5%) of any businessclass of capital stock of such company or other entity.
(b) During the Restricted Period, whether in corporatethe Consultant shall not, proprietorship directly or partnership form indirectly, for himself or otherwisefor any other person, firm, corporation, partnership, company, association or other entity, knowingly solicit, attempt to contract with, or enter into any business relationship with any person or entity with which the Company or Company Bank, or any affiliate of the Company or Company Bank, had any business relationship or engaged in negotiations toward a relationship in the Business previous 12 months, related to the following business activities (collectively, the “Company Business”): • commercial or that otherwise competes consumer banking; • wealth management and trust administration; and • insurance services, including, without limitation, title insurance, property and casualty insurance. A general advertisement not specifically directed at any Company customer shall not constitute a solicitation for purposes of this Section 6(b).
(c) During the Restricted Period, Consultant shall not knowingly: (a) directly or indirectly solicit for employment with the Business Consultant, or anyone else, or employ, any person who was an employee of the Company, the Company Bank or its subsidiaries (the “Company Parties” within six (6) months prior to such solicitation of employment; or (b) induce, or attempt to induce, any employee of the Company Parties to terminate such employee’s employment. A general advertisement not specifically directed at any employee of the Company Parties shall not constitute a “Restricted Business”solicitation for purposes of this Section 6(c).
(d) The Consultant acknowledges and agrees that he has certain continuing confidentiality and non-disclosure obligations under the Company’s code of ethics and as specified in the Release (as defined below).
(e) The Consultant acknowledges and agrees:
i. that the provisions of Section 7 are reasonable and necessary for the protection of the Company Parties, and their successors and assigns,
ii. The parties hereto specifically acknowledge and agree that the remedy at law for any breach by him of the foregoing provisions of this Section will be inadequate and, accordingly, the Consultant agrees that in the case of any such breach the appropriate Company Party, or its successors and that Newco, in addition to any other relief available to itassigns, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting and shall not be required to post any bond whatsoeverbond.
(bf) For a period from the Closing Date Notwithstanding anything in this Section 7 to the fifth (5th) anniversary of the Closing Datecontrary, neither the Company nor any agrees not to unreasonably withhold consent if Consultant requests permission to serve as a director of its Subsidiaries shall: (i) causea bank, solicitbank holding company or financial institution or a consultant, induce officer or encourage any Employees employee involved in operations of such an institution, provided that the institution is does not directly compete with the Company to leave such employment or hireCompany Bank and that Consultant is otherwise honoring his obligations under paragraphs (b), employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship.
(c) The covenants and undertakings contained in this Section 6.7 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms (d) of this Section 6.7 will cause irreparable injury to Newco, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law or in equity7.
(d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement of the Subsidiaries of the Company to the provisions of this Section 6.7 in form and content reasonably satisfactory to Newco.
Appears in 1 contract
Samples: Consulting and Retirement Agreement (Valley National Bancorp)
Non-Competition; Non-Solicitation; Confidentiality. (a) For a period from Executive acknowledges and recognizes the Closing Date until the fifth (5th) anniversary highly competitive nature of the Closing Datebusiness of Company and accordingly agrees that, neither in consideration of this Agreement, the rights conferred hereunder, and any payment hereunder, during his employment with Company nor and for the TWENTY-FOUR (24) month period following the termination of Executive's employment with Company, for any reason ("Non-Compete Term"), Executive shall not engage, either directly or indirectly, as a principal for Executive's own account or jointly with others, as a stockholder in any corporation or joint stock association, or as a partner or member of a general or limited liability entity, or as an employee, officer, director, agent, consultant, or in any other advisory capacity in any business other than Company or its Subsidiaries shallsubsidiaries which designs, develops, manufacturers, distributes, sells or markets the type of products or services sold, distributed or provided by Company or its subsidiaries during the two (2) year period prior to the date of termination (the "Business"); provided that nothing herein shall prevent Executive from owning, directly or indirectly, ownnot more than five percent (5%) of the outstanding shares of, manageor any other equity interest in, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, entity engaged in the Business and listed or that otherwise competes with the Business (traded on a “Restricted Business”). The parties hereto specifically acknowledge and agree that the remedy at law for any breach of the foregoing will be inadequate and that Newco, national securities exchanges or in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoeveran over-the-counter securities market.
(b) For a period from During the Closing Date to Non-Compete Term, Executive shall not (1) directly or indirectly employ or solicit, or receive or accept the fifth (5th) anniversary performance of the Closing Dateservices by, neither the any active employee of Company nor or any of its Subsidiaries shall: (i) causesubsidiaries who is employed primarily in connection with the Business, solicitexcept in connection with general, non-targeted recruitment efforts such as advertisements and job listings, or directly or indirectly induce or encourage any Employees employee of the Company to leave such employment Company, or hireassist in any of the foregoing, employ or otherwise engage any such individual; or (ii2) cause, induce or encourage solicit for business (relating to the Business) any material actual or prospective client, customer, supplier or licensor of the Business (including any existing person who is a customer or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) or any other Person who has of its subsidiaries, unless such person shall have ceased to have been such a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipcustomer for a period of at least six (6) months.
(c) The covenants and undertakings contained in this Section 6.7 relate to matters which are of a special, unique and extraordinary character and a violation Executive shall not at any time (whether during or after his employment with Company) disclose or use for Executive's own benefit or purposes or the benefit or purposes of any other person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise other than Company and any of its subsidiaries, any trade secrets, information, data, or other confidential information of the terms Company, including but not limited to, information relating to customers, development programs, costs, marketing, trading, investment, sales activities, promotion, credit and financial data, financing methods, plans or the business and affairs of Company generally, or of any subsidiary of Company, unless required to do so by applicable law or court order, subpoena or decree or otherwise required by law, with reasonable evidence of such determination promptly provided to Company. The preceding sentence of this Section 6.7 will cause irreparable injury paragraph (c) shall not apply to Newco, information which is not unique to Company or which is generally known to the amount industry or the public other than as a result of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any Executive's breach of this Section 6.7 covenant. Executive agrees that upon termination of employment with Company for any reason, Executive will be inadequatereturn to Company immediately all memoranda, books, papers, plans, information, letters and other data, and all copies thereof or therefrom, in any way relating to the business of Company and its subsidiaries, except that Executive may retain personal notes, notebooks and diaries. ThereforeExecutive further agrees that Executive will not retain or use for Executive's account at any time any trade names, Newco will be entitled to an injunction, restraining order trademark or other equitable relief from any court proprietary business designation used or owned in connection with the business of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder Company or at law or in equityits subsidiaries.
(d) The parties hereto agree thatIt is expressly understood and agreed that although Executive and Company consider the restrictions contained in this Section 2 to be reasonable, if any a final judicial determination is made by a court of competent jurisdiction in a final nonappealable judgment determines that a specified the time period, a specified geographical area, a specified business limitation or territory or any other relevant feature restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time period, geographical area, business limitation or other relevant feature which is determined by and territory and to such maximum extent as such court may judicially determine or indicate to be reasonableenforceable. Alternatively, if any tribunal of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot arbitrary and be amended so as to make it enforceable, such finding shall not against public policy may be enforced against affect the applicable partyenforceability of any of the other restrictions contained herein.
(e) The As a condition to the receipt of any benefits described in this Agreement, Executive shall be required to execute an agreement pursuant to which Executive releases any claims he may have against Company shall use its commercially reasonable efforts and agrees to obtain the agreement continuing enforceability of the Subsidiaries of the Company to the provisions restrictive covenants of this Agreement.
(f) This Section 6.7 in form and content reasonably satisfactory to Newco2 will survive the termination of this Agreement.
Appears in 1 contract
Non-Competition; Non-Solicitation; Confidentiality. Each of the Restricted Parties severally covenants as set forth in Section 6.2(a) through (d) below:
(a) For Except in connection with services provided on behalf of the Company Group or Purchaser, for a period of five (5) years from the Closing Date until the fifth (5th) anniversary of and after the Closing Date, neither such Restricted Party shall not: (i) within the Company nor any of its Subsidiaries shall, Restricted Territory (as defined below) directly or indirectly, own, manage, engage in, operate, control control, work for, consult with, render services for, do business with, maintain any interest in (proprietary, financial or otherwise) or participate in the ownership, management, operation or control of of, any business, whether in corporate, proprietorship or partnership form or otherwise, engaged in contract manufacturing, distribution or sales of branded, generic or OTC multivitamins with fluoride, products containing prednisone or prednisolone, products used for the Business treatment of head lice or that otherwise competes with products which any member of the Business Company Group at the time of Closing sells, has the contractual right to sell or has in the product pipeline (a “Restricted Business”). The parties hereto specifically acknowledge and agree that ; or (ii) acquire or own, directly or indirectly, the remedy at law for outstanding capital stock of any breach Person engaged in a Restricted Business in the Restricted Territory; provided, however, the foregoing shall not prohibit the ownership of publicly-traded securities constituting not more than 5% of the outstanding securities of an entity conducting a Restricted Business and shall not limit in any way the acquisition or ownership of securities of Purchaser. As used herein, the term “Restricted Territory” means the United States of America, but if the foregoing definition is deemed by a court of competent jurisdiction to be too broad to be enforced, then “Restricted Territory” will be inadequate and that Newco, mean each of the States of the United States in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without which the necessity Company Entities conducted business as of proving actual damage or posting any bond whatsoeverthe date hereof.
(b) For a period of five (5) years from the Closing Date to the fifth (5th) anniversary of and after the Closing Date, neither the Company nor any of its Subsidiaries shallsuch Restricted Party shall not, directly or indirectly: (i) cause, solicit, induce or encourage any Employees employees of the Company Group to leave such employment or hire, employ or otherwise engage any such individual, except pursuant to a general solicitation which is not directed specifically to any such employees; or (ii) cause, induce or encourage any Person who has a material actual or prospective business relationship with the Company Group as of the Closing, including any client, customer, 50 customer or supplier or licensor of the Business Company Group, to terminate or modify any such relationship, or (iii) cause, induce or encourage any Person who has a material business relationship with the Company Group (including any existing or former customer of the Company Group and any Person that becomes a client or customer of the Business Company Group after the Closing) or any other Person who has a material business relationship with the Business), to terminate or modify any such actual relationship. Notwithstanding the foregoing, nothing in this Section 6.2 shall prevent any Restricted Party or prospective relationshipany Affiliate thereof from hiring (i) any employee whose employment has been terminated by Purchaser; or (ii) any independent contractors who have not been directly involved in the business of the Company Group and have at any time been professional advisors or service providers to the Sellers, including but not limited to outside attorneys, accountants and computer consultants.
(c) Each of the Restricted Parties acknowledges that the agreements and covenants contained in this Section 6.2 are essential to protect the value to be received by Purchaser upon and following the consummation of the transactions contemplated hereby, such agreements and covenants are important elements in Purchaser’s valuation of the Company Entities and its decision to agree to pay the Purchase Price and are a material inducement to Purchaser’s agreement to enter into this Agreement. The covenants and undertakings contained in this Section 6.7 6.2 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 6.7 6.2 will cause irreparable injury to Newco, the amount of which Purchaser and will be impossible entitle Purchaser to estimate or determine a temporary and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an permanent injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.76.2 without the necessity of proving actual damage or posting any bond whatsoever. The rights and remedies provided by this Section 6.7 6.2 are cumulative and in addition to any other rights and remedies which Newco Purchaser may have hereunder or at law or in equity.
(d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified the geographical area, a specified business limitation or any other relevant feature of this Section 6.7 6.2 is unreasonable, arbitrary or against public policy, then a lesser the covenant or provision in question shall remain in full force and effect for the greatest time period, geographical area, business limitation limitation, or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may policy, and the parties expressly agree that the court shall be enforced against authorized to modify the applicable party.
(eprovision(s) The Company shall use its commercially reasonable efforts to obtain the agreement of the Subsidiaries of the Company to the provisions of this Section 6.7 in form extent necessary to render them valid and content reasonably satisfactory enforceable to Newcothe maximum extent permitted by law.
Appears in 1 contract
Samples: Equity Interest Purchase Agreement
Non-Competition; Non-Solicitation; Confidentiality. (a) For While the Optionee is employed by the Company and for a period of one (1) year after the Optionee’s Separation from Service for any reason (the Closing Date until “Restricted Period”), the fifth (5th) anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, Optionee will not directly or indirectly:
(i) Engage in any business or enterprise (whether as owner, ownpartner, manageofficer, operatedirector, control or participate in the ownershipemployee, managementconsultant, operation or control of any businessinvestor, whether in corporate, proprietorship or partnership form lender or otherwise, engaged in except as the Business holder of not more than one percent (1%) of the outstanding stock of a publicly-held company), that develops, manufactures, markets or sells any product or service that otherwise competes with any product or service developed, manufactured, marketed or sold or, to the Business Optionee’s knowledge, planned to be developed, manufactured, marketed or sold, by II-VI or its Subsidiaries while the Optionee was employed by the Company, within the United States of America and/or any other country within which II-VI or its Subsidiaries have customers or prospective customers.
(a “Restricted Business”). The ii) (A) solicit for the purpose of selling or distributing any products or services that are the same or similar to those developed, manufactured, marketed or sold by II-VI or its Subsidiaries, (1) any customers of II-VI or its Subsidiaries, (2) any prospective customers known by the Optionee to have been solicited by II-VI or its Subsidiaries within the twelve (12) months prior to the Optionee’s Separation from Service, or (3) any distributors, sales agents or other third-parties hereto specifically acknowledge and agree that the remedy at law for any breach who sell to or refer potential customers in need of the foregoing will be inadequate types of products and services produced, marketed, licensed, sold or provided by II-VI or its Subsidiaries who have become known to the Optionee as a result of his/her employment with the Company, or (B) induce or attempt to induce any vendor, supplier, licensee or other business relation of II-VI or its Subsidiaries to cease or restrict doing business with II-VI or its Subsidiaries, or in any way interfere with the relationship between any such vendor, supplier, licensee or business relation and II-VI or its Subsidiaries.
(iii) Either alone or in association with others (A) solicit, or permit any organization directly or indirectly controlled by the Optionee to solicit, any employee of II-VI or its Subsidiaries to leave the employ of II-VI or its Subsidiaries, or (B) solicit for employment, hire or engage as an independent contractor, or permit any organization directly or indirectly controlled by the Optionee to solicit for employment, hire or engage as an independent contractor, any person who was employed by II-VI or its Subsidiaries at any time during the term of the Optionee’s employment with the Company; provided that Newco, in addition this clause (B) shall not apply to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity individual whose employment with II-VI or its Subsidiaries has been terminated for a period of proving actual damage one (1) year or posting any bond whatsoeverlonger.
(b) For a period from The Optionee acknowledges that certain materials, including information, data, technology and other materials relating to customers, programs, costs, marketing, investment, sales activities, promotion, credit and financial data, manufacturing processes, financing methods, plans or the Closing Date business and affairs of II-VI and its Subsidiaries constitute proprietary confidential information and trade secrets. Accordingly, the Optionee will not at any time during or after the Optionee’s employment with the Company disclose or use for the Optionee’s own benefit or purposes or the benefit or purposes of any other person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise, other than the Company, any proprietary confidential information or trade secrets; provided that the foregoing shall not apply to information which is not unique to II-VI and its Subsidiaries or which is generally known to the fifth (5th) anniversary industry or the public other than as a result of the Closing DateOptionee’s breach of this covenant. The Optionee agrees that, neither upon Separation from Service for any reason, the Company nor Optionee will immediately return to II-VI all property of II-VI and its Subsidiaries, including all memoranda, books, technical and/or lab notebooks, customer product and pricing data, papers, plans, information, letters and other data, and all copies thereof or therefrom, which in any way relate to the business of II-VI and its Subsidiaries shall: (i) causeSubsidiaries, solicitexcept that the Optionee may retain personal items. The Optionee further agrees that the Optionee will not retain or use for the Optionee’s account at any time any trade names, induce trademark or encourage other proprietary business designation used or owned in connection with the business of II-VI and its Subsidiaries. The Restricted Period will be tolled during and for any Employees period of time during which the Optionee is in violation of the Company to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship.
(c) The restrictive covenants and undertakings contained in this Section 6.7 relate to matters which are of a special, unique 12 and extraordinary character and a violation of any of the terms of this Section 6.7 will cause irreparable injury to Newco, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach period of this Section 6.7 will time which may be inadequate. Therefore, Newco will be entitled necessary to secure an order of court or injunction, restraining order either preliminary or other equitable relief from any court of competent jurisdiction permanent, to enforce such covenants, such that the cumulative time period during which the Optionee is in compliance with the event of any breach of this restrictive covenants contained in Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law or in equity12 will not exceed the one (1)-year period set forth above.
(d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement of the Subsidiaries of the Company to the provisions of this Section 6.7 in form and content reasonably satisfactory to Newco.
Appears in 1 contract
Non-Competition; Non-Solicitation; Confidentiality. (a) For a period from Executive acknowledges and recognizes the Closing Date until the fifth (5th) anniversary highly competitive nature of the Closing Date, neither business of the Company nor and accordingly agrees that, in consideration of this Agreement, the rights conferred hereunder, and the payments hereunder, during the Non-Compete Term (as hereinafter defined), Executive will not engage, either directly or indirectly, as an employee, consultant or independent contractor, or as a principal for his own account or jointly with others, or as a stockholder in any corporation or joint stock association which designs, develops, manufactures, distributes, sells or markets the type of products or services sold, distributed or provided by the Company or its Subsidiaries shallsubsidiaries during the two year period prior to the Termination Date (the "Business"); provided, that nothing herein shall prevent Executive from owning, directly or indirectly, ownnot more than 5% of the outstanding shares of, manageor any other equity interest in, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, entity engaged in the Business and listed or that otherwise competes with the Business (traded on a “Restricted Business”). The parties hereto specifically acknowledge and agree that the remedy at law for any breach of the foregoing will be inadequate and that Newco, national securities exchanges or in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoeveran over-the-counter securities market.
(b) For a During the period from the Closing Date to date of this Agreement until the fifth (5th) anniversary end of the Closing DateConsulting Period ("Non-Compete Term"), neither Executive will not (i) employ or solicit, or receive or accept the performance of services by, any active employee of the Company nor or any of its Subsidiaries shall: (i) causesubsidiaries who is employed primarily in connection with the Business, solicitexcept in connection with general, induce or encourage any Employees of the Company to leave non-targeted recruitment efforts such employment or hire, employ or otherwise engage any such individual; as advertisements and job listings or (ii) cause, induce or encourage solicit for business (relating to the Business) any material actual or prospective client, customer, supplier or licensor of the Business (including any existing person who is a customer or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) or any other Person who has of its subsidiaries, unless such person shall have ceased to have been such a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipcustomer for a period of at least six months.
(c) The covenants and undertakings contained in this Section 6.7 relate to matters which are of a special, unique and extraordinary character and a violation Executive will not at any time disclose or use for his own benefit or purposes or the benefit or purposes of any other person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise other than the Company and any of its subsidiaries, any trade secrets, information, data, or other confidential information relating to customers, development programs, costs, marketing, trading, investment, sales activities, promotion, credit and financial data, financing methods, plans, or the business and affairs of the terms Company generally, or of any subsidiary of the Company, unless required to do so by applicable law or court order, subpoena or decree or otherwise required by law, with reasonable evidence of such determination promptly provided to the Company. The preceding sentence of this Section 6.7 will cause irreparable injury sub-clause (c) shall not apply to Newco, information which is not unique to the amount Company or which is generally known to the industry or the public other than as a result of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any Executive's breach of this Section 6.7 covenant. Executive agrees that within 10 days after the Termination Date, he will be inadequatereturn to the Company immediately all memoranda, books, papers, plans, information, letters and other data, and all copies thereof or therefrom, in any way relating to the business of the Company and its subsidiaries, except that he may retain personal notes, notebooks and diaries. ThereforeExecutive further agrees that he will not retain or use for his account at any time any trade names, Newco will be entitled to an injunction, restraining order trademark or other equitable relief from any court proprietary business designation used or owned in connection with the business of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder Company or at law or in equityits subsidiaries.
(d) The parties hereto agree thatIt is expressly understood and agreed that although Executive and the Company consider the restrictions contained in this Section 8 to be reasonable, if any a final judicial determination is made by a court of competent jurisdiction in a final nonappealable judgment determines that a specified the time period, a specified geographical area, a specified business limitation or territory or any other relevant feature of restriction contained in this Section 6.7 Agreement is unreasonablean unenforceable restriction against Executive, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement of the Subsidiaries of the Company to the provisions of this Section 6.7 Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any tribunal of competent jurisdiction finds that any restriction contained in form this Agreement is unenforceable, and content reasonably satisfactory such restriction cannot be amended so as to Newcomake it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
Appears in 1 contract
Non-Competition; Non-Solicitation; Confidentiality. (a) For a period from The parties agree to continue to abide by that certain Confidentiality Agreement between the Closing Date Sellers and the Purchaser dated May 20, 2009 (the "Confidentiality Agreement"), which will survive until the fifth Closing, at which time the Confidentiality Agreement will terminate; provided, however, that if this Agreement is, for any reason, terminated prior to the Closing, the Confidentiality Agreement will continue in full force and effect in accordance with its terms.
(5thb) anniversary of After the Closing DateClosing, neither the Company nor any of its Subsidiaries shallSellers will not and will cause their directors, officers, employees and Affiliates not to, directly or indirectly, owndisclose, managereveal, operatedivulge or communicate to any Person other than authorized officers, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, engaged in the Business or that otherwise competes with the Business (a “Restricted Business”). The parties hereto specifically acknowledge directors and agree that the remedy at law for any breach employees of the foregoing will be inadequate and that NewcoPurchaser or use or otherwise exploit for its own benefit or for the benefit of anyone other than the Purchaser, in addition to any other relief available to itthe Company Information, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoever.
(b) For a period from the Closing Date except to the fifth (5th) anniversary of extent compelled by Law or to the Closing Date, neither the extent that such Company nor any of its Subsidiaries shall: Information (i) cause, solicit, induce or encourage any Employees must be disclosed in connection with the obligations of the Company Sellers pursuant to leave such employment or hire, employ or otherwise engage any such individual; this Agreement and the Ancillary Agreements or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor can be shown to have been in the public domain through no fault of the Business (including any existing Sellers. Notwithstanding the foregoing, in no event will this Section 5.6(b) limit or former customer otherwise restrict the right of the Sellers to disclose such Company information (i) to its and its Affiliates' respective directors, officers, employees, agents and advisors to the extent reasonably required to facilitate the negotiation, execution, delivery or performance of this Agreement and the Ancillary Agreements, (ii) to any Person that becomes a client Governmental Authority or customer arbitrator to the extent reasonably required in connection with any Proceeding relating to the enforcement of the Business after the Closing) this Agreement or any other Person who has a material business relationship Ancillary Agreement, (iii) in connection with its indemnification obligations under this Agreement, including the Business, to terminate or modify any such actual or prospective relationship.
(c) The covenants and undertakings contained in this Section 6.7 relate to matters which are of a special, unique and extraordinary character and a violation defense of any Third Party Claim, and (iv) as permitted in accordance with Section 5.7. "Company Information" means any information with respect to the Acquired Companies, including methods of the terms of this Section 6.7 will cause irreparable injury to Newcooperation, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordinglycustomer lists, the remedy at law for any breach of this Section 6.7 will be inadequate. Thereforeproducts, Newco will be entitled to an injunctionprices, restraining order fees, costs, Technology, inventions, Trade Secrets, know-how, Software, marketing methods, plans, personnel, suppliers, competitors, markets or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder specialized information or at law or in equityproprietary matters.
(d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement of the Subsidiaries of the Company to the provisions of this Section 6.7 in form and content reasonably satisfactory to Newco.
Appears in 1 contract
Non-Competition; Non-Solicitation; Confidentiality. (a) For Other than the ownership or operation by Xxx of assets that are used or held for use in connection with its exploration and production business from time to time that are of a type and nature used or held for use by Xxx as of the date hereof in connection with its exploration and production business, provided that such operation and use does not compete with the Business with respect to third Persons [REDACTED]* (the “Excluded E&P Business”), for a period of [REDACTED]* from and after the Closing Date until (the fifth (5th) anniversary “Noncompetition Period”), neither of the Closing Date, neither the Company Sellers nor any of its Subsidiaries their respective Affiliates shall, directly or indirectly, whether as principal, agent, partner, officer, director, stockholder, employee, consultant or otherwise, alone or in association with any other Person, own, manage, operate, control or control, participate in, invest in (other than (i) an investment that results in such Person owning less than 2% of the ownershipoutstanding voting stock of a publicly traded company, management, operation or control of any business(ii) the acquisition by a Party, whether in corporatethrough merger, proprietorship or partnership form change of control, assignment of assets, or otherwise, engaged of a Person, or the assets of a Person, (A) that, on the effective date of the acquisition, derives no more than the lesser of (x) [REDACTED]* or (y) [REDACTED]* of its annual revenues from activities that are directly or indirectly in competition with the Business or that otherwise competes (B) solely because such Person or such assets or business would, if owned or undertaken by Xxx, constitute the Excluded E&P Business, or (iii) the acquisition of either Seller or any of its Affiliates by a third Person), or, subject to the foregoing parenthetical, carry on a business which, directly or indirectly, is in competition with the Business [REDACTED]*.
(b) For [REDACTED]* after the Closing Date, neither of the Sellers nor their respective Affiliates shall, whether for their own account or for the account of any Person, solicit, offer employment to or hire any individual that is employed by the Company or any of the Subsidiaries on the Closing Date; provided, however, Sellers and their respective Affiliates shall not be prohibited from (i) initiating searches for employees through the use of non-directed general advertisement or through the engagement of firms to conduct searches that are not targeted or focused on the Company and the Subsidiaries or (ii) soliciting, hiring, or employing any Person that has been terminated by (or who has terminated his or her employment with) Purchaser, the Company, or the relevant Subsidiary, provided that, unless the [REDACTED]* period provided for herein has earlier terminated, [REDACTED]* shall have elapsed from the date of such termination.
(c) After the Closing, each Seller shall (and shall cause each of their Affiliates to) maintain as confidential, and shall not (and shall cause each of their Affiliates not to) use or disclose, except as required by Law or as authorized in writing by Purchaser, any Confidential Information. Each Seller shall take all appropriate steps (and to cause each of its Affiliates to take all appropriate steps) to safeguard such Confidential Information and to protect it against disclosure, misuse, espionage, loss and theft, using the standard of care that they each use to protect their own similar confidential information (and in no event less than a “Restricted Business”reasonable standard of care). In the event a Seller or any of their Affiliates is required by Law to disclose any Confidential Information, such Seller shall promptly notify Purchaser in writing, which notification shall include the nature of the legal requirement and the extent of the required disclosure, and shall cooperate reasonably with Purchaser to preserve the confidentiality of such information consistent with applicable Law. The parties hereto specifically foregoing shall not apply to press releases or other announcements pursuant to Section 5.2 or Confidential Information that (i) is or becomes generally available to the public, other than as a result of breach of this Section 5.12(c) by a Seller; (ii) is acquired independently from a third Person that represents to a Seller or its Affiliate that it has, and Seller or such Affiliate does not otherwise have reason to believe that such Person does not have, the right to disseminate such information at the time it is acquired by Seller; or (iii) is used by Xxx in connection with the Excluded E&P Business; or (iv) is used or disclosed by a Seller in the enforcement of this Agreement or its rights hereunder or under any document executed pursuant to the transactions contemplated hereby. The Confidentiality Agreement shall terminate and be of no further force or effect as of the Closing.
(d) Sellers acknowledge and agree that the remedy at law for any breach of the foregoing will be inadequate and that Newcobreach, in addition to any other relief available to itor threatened breach, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoever.
(b) For a period from the Closing Date to the fifth (5th) anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall: (i) cause, solicit, induce or encourage any Employees of the Company to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship.
(c) The covenants and undertakings contained in this Section 6.7 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms provisions of this Section 6.7 will cause irreparable injury to Newco, the amount of which 5.12 will be impossible to estimate or determine inadequate and, accordingly, each Seller covenants and which cannot be adequately compensated. Accordinglyagrees that Purchaser shall, the remedy at law for any breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco Purchaser may have hereunder at Law, be entitled to equitable relief, including injunctive relief, and to the remedy of specific performance with respect to any breach or at law or threatened breach of such covenant, as may be available from any court of competent jurisdiction. In addition, each Seller and Purchaser agree that the terms of the covenant in equity.
(d) The parties hereto agree that, if this Section 5.12 are fair and reasonable and are necessary to accomplish the full transfer of the goodwill and other intangible assets contemplated hereby. In the event that any of the covenants contained in this Section 5.12 shall be determined by any court of competent jurisdiction to be unenforceable for any reason whatsoever, then any such provision or provisions shall not be deemed void, and the parties hereto agree that said limits may be modified by the court and that said covenant contained in this Section 5.12 shall be amended in accordance with said modification, it being specifically agreed by the parties that it is their continuing desire that this covenant be enforced to the full extent of its terms and conditions or if a final nonappealable judgment determines that a specified time periodcourt finds the scope of the covenant unenforceable, a specified geographical area, a specified business limitation or any other relevant feature the court should redefine the covenant so as to comply with applicable Law. Each Seller shall be responsible for compliance with the terms of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary 5.12 severally and not against public policy may be enforced against the applicable partyjointly.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement of the Subsidiaries of the Company to the provisions of this Section 6.7 in form and content reasonably satisfactory to Newco.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Rex Energy Corp)
Non-Competition; Non-Solicitation; Confidentiality. (a) For a period from Each Seller Party acknowledges that it is familiar with the Closing Date until Trade Secrets and other confidential information of ALT, and that the fifth Business is reasonably expected to operate throughout the United States. Therefore, each Seller Party agrees to the covenants set forth in this Section 5.2 and acknowledges that Purchaser would not have entered into this Agreement but for the Seller Parties’ agreement to the restrictions set forth in this Section 5.2.
(5thb) anniversary of the Closing DateNo Seller Party shall, neither the Company nor any of and each Seller Party shall cause its Subsidiaries shallAffiliates not to, directly or indirectly, own, operate, lease, manage, operatecontrol, control engage in, invest in, lend to, own any debt or equity security or interest of, permit its name to be used by, act as a director, manager, partner, consultant, or advisor to, render services for or to (alone or in association with any Person), or otherwise participate or assist any Person other than Purchaser and its Affiliates in any manner (i) with the purchase and sale of used and/or refurbished biotechnology, pharmaceutical, and laboratory equipment or (ii) that would otherwise compete with the Business anywhere in the ownershipUnited States or Canada or its territories and possessions for a period of two (2) years from and after the Closing Date (the “Restricted Period”); provided, managementhowever, operation that nothing in this Agreement shall prohibit any Seller Party from holding a passive beneficial ownership interest of less than two percent (2%) of the outstanding publicly traded equity securities or control interests of any businessentity, whether or holding the Seller Note.
(c) During the Restricted Period, no Seller Party shall, and each Seller Party shall cause its, his or her Affiliates not to, directly or indirectly, hire, engage, or solicit for employment (or engagement as a consultant) any Person who (i) was employed (or engaged as a consultant) by ALT during the one (1) year period prior to Closing, or (ii) is or was employed (or engaged as a consultant) by Purchaser or any of its Affiliates during the one (1) year period prior to such solicitation, or encourage or induce or attempt to encourage or induce any such employee or consultant to leave such employment or engagement, except that the foregoing prohibition on solicitation shall not prohibit a general solicitation by means of general advertisement that is not specifically directed at such employees or consultants.
(d) During the Restricted Period, no Seller Party shall, and each Seller Party shall cause its, his or her Affiliates not to, directly or indirectly, (i) encourage or induce or attempt to encourage or induce any Person who is, or was within two (2) years prior to the date thereof, a supplier, licensor, customer, client or other business relation of ALT , Purchaser or Purchaser’s Affiliates (such supplier, licensor, customer, client or other business relation collectively, the “Seller Relations”) to cease doing business or modify the way it does business with Purchaser or its Affiliates or in corporate, proprietorship any way interfere with or partnership form otherwise adversely affect the relationship between any Seller Relation and Purchaser or otherwise, engaged in the Business its Affiliates; or that otherwise competes (ii) solicit any Seller Relation for a business competitive with the Business (including, without limitation, any business providing the same types of services or selling the same types of products as those provided or sold by ALT at or prior to Closing).
(e) During the Restricted Period, other than in connection with any employment or consulting arrangement with Purchaser or any of its Affiliates, each Seller Party shall, and shall cause its, his or her respective Affiliates, representatives and agents to, hold in confidence (and not disclose or provide access to any other Person) and not use, any and all confidential or proprietary information, whether written or oral, concerning ALT, except to the extent that such information: (i) is generally available to and known by the public through no fault of any Seller Party or any of their respective Affiliates, representatives or agents; or (ii) was lawfully acquired by such Seller Party or any of its respective Affiliates, representatives or agents from and after the Closing from sources unrelated to Purchaser or any other Seller Party that are not prohibited from disclosing such information by a “Restricted Business”legal, contractual or fiduciary obligation. If any Seller Party or any of its respective Affiliates, representatives or agents is compelled to disclose any information by judicial or administrative process or by other requirements of Law, such Seller Party shall promptly notify Purchaser in writing and shall disclose only that portion of such information that such Seller Party is advised by its counsel in writing is legally required to be disclosed; provided, however, that such Seller Party (or representative on its behalf) shall, to the extent practicable and permitted by Law, promptly notify Purchaser in writing so that Purchaser may seek to obtain (at Purchaser’s sole expense), an appropriate protective Order or other reasonable assurance that confidential treatment will be accorded such information. Notwithstanding anything to the contrary set forth in this Agreement, the Seller Parties shall be permitted to use confidential and proprietary information of ALT solely in connection with their Tax or accounting purposes, legal compliance, or to enforce their respective rights under this Agreement or the other Transaction Documents, or defend any indemnification claim under this Agreement.
(f) The parties hereto specifically Parties acknowledge and agree that the Purchaser and each of its Affiliates, successors, and assigns would suffer irreparable harm from a breach of this Section 5.2 by a Seller Party and that money damages would not be an adequate remedy at law for any such breach. Therefore, in the event of a breach or threatened breach of the foregoing will be inadequate this Section 5.2, Purchaser and that Newcoeach of its Affiliates or their respective successors and assigns, in addition to any other relief rights and remedies available to itat Law or in equity, shall be entitled to temporary specific performance, injunctive, and permanent injunctive other equitable relief in order to enforce or prevent any breach of the provisions of this Agreement (without posting a bond or other security and at the necessity expense of proving actual damage or posting any bond whatsoeverthe Seller Parties, including reasonable attorneys’ fees and expenses).
(bg) For If the final judgment of a period from court of competent jurisdiction declares any term or provision of this Section 5.2 to be invalid or unenforceable, the Closing Date Parties agree that the court making the determination of invalidity or unenforceability shall have the power to reduce the fifth (5th) anniversary scope, duration, or area of the Closing Dateterm or provision, neither to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the Company nor any of its Subsidiaries shall: (i) cause, solicit, induce or encourage any Employees intention of the Company invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified to leave such employment cover the maximum duration, scope or hirearea permitted by Law. In addition, employ or otherwise engage in the event of a breach by any such individual; or (ii) causeSeller Party of Section 5.2(b), induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship.
(c) The covenants or (d), the Restricted Period, as applicable, shall be tolled with respect to such Seller Party until such breach has been cured. Each Seller Party, on behalf of itself and undertakings its Affiliates, representatives and agents, agrees that the restrictions contained in this Section 6.7 relate 5.2 are reasonable and necessary to matters which are of a special, unique protect Purchaser’s legitimate business interests and extraordinary character ALT’s goodwill purchased pursuant to this Agreement and a violation of any of the terms of this Section 6.7 will cause irreparable injury to Newco, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law or in equityTransaction Documents.
(d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement of the Subsidiaries of the Company to the provisions of this Section 6.7 in form and content reasonably satisfactory to Newco.
Appears in 1 contract
Non-Competition; Non-Solicitation; Confidentiality. (a) For a period from As an inducement for the Buyer to enter into this Agreement, the Seller agrees that, following the Closing Date until the fifth (5th) anniversary of the Closing Date, without the prior written consent of the Buyer, neither the Company Seller nor any of its Subsidiaries controlled Affiliates shall, directly or indirectly, acquire, own, have an equity interest in, manage, operate, control or participate in the ownership, management, operation management or control of, or consult with, advise or provide any other services to, any Person engaged, directly or indirectly, anywhere in the United States, in any aspect of any businessbusiness which competes with, whether or is intended to compete with, in corporateany material respect, proprietorship the Business; provided, that, the foregoing shall not prohibit the Seller or partnership form any of its Affiliates from (i) owning a passive investment of 5% or otherwiseless of the outstanding equity of any publicly traded company or (ii) engaging in any line of business currently engaged in by the Seller or any of its Affiliates (other than the Company), including, for the avoidance of doubt, providing any products or services to any Person that is engaged in the Business Business. As an inducement for the Buyer to enter into this Agreement, the Seller agrees that, neither the Seller nor any of its controlled Affiliates shall directly or that otherwise competes indirectly, on behalf of themselves or any Person: (i) request or seek the early termination of the existing USPS Alliance Agreement or the existing USPS Affiliation Program Agreement or (ii) bid on or compete with the Business (a “Restricted Business”). The parties hereto specifically acknowledge and agree that Company in pursuing the remedy at law for any breach renewal or replacement of the foregoing will be inadequate existing USPS Alliance Agreement or the existing USPS Affiliation Program Agreement, provided that such obligation shall expire after the existing USPS Alliance Agreement or the existing USPS Affiliation Program Agreement, as applicable, has come up for renewal or replacement and that Newcothe USPS has made its final determination and awarded any such replacement contract for the existing USPS Alliance Agreement or the existing USPS Affiliation Program Agreement, in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoeveras applicable.
(b) For a period from As an inducement for the Seller to enter into this Agreement, the Buyer agrees that, following the Closing Date to until the fifth (5th) second anniversary of the Closing Date, without the prior written consent of the Seller, neither the Company Buyer nor any of its Subsidiaries Affiliates, officers, directors and employees shall: , directly or indirectly (i) causesolicit for employment or hire any director, solicitofficer or employee of the Seller and its Affiliates with whom the Buyer had meaningful contact as a result of the Transaction , (ii) induce or encourage any Employees director, officer or employee of the Company Seller and its Affiliates with whom the Buyer had meaningful contact as a result of the Transaction to leave such terminate his or her employment with the Seller or its Affiliates; provided, that, nothing in this Section 5.13(b) shall prohibit any party from placing general advertisements to hire employees that are not targeted toward employees the soliciting of whom for employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshiphire would violate this Section 5.13(b).
(c) The covenants As an inducement for the Buyer to enter into this Agreement, the Seller agrees that, following the Closing until the second anniversary of the Closing Date, without the prior written consent of the Buyer, neither the Seller nor any of its Affiliates or their respective officers, directors and undertakings contained employees shall, directly or indirectly (i) solicit for employment or hire any director, officer or employee of the Company, (ii) induce or encourage any director, officer or employee of the Company to terminate his or her employment with the Company, (iii) knowingly influence or attempt to influence any customers, distributors or suppliers of the Company to divert their business to any competitor of the Company or in any way interfere with the relationship between any such customer, distributor or supplier and the Company (including, without limitation, making any disparaging or negative statements or communications about the Company its businesses), (iv) knowingly take any action that is designed or intended to have the effect of discouraging any customer, supplier, lessor, licensor, or other business associate of the Company from maintaining the same business relationships after the Closing as it maintained prior to the Closing, or (v) disclose, reveal, divulge or communicate to any Person other than the Buyer or its Subsidiaries, or use or otherwise exploit for its own benefit or the benefit of anyone other than the Buyer or its Subsidiaries, any Confidential Information; provided, that, nothing in this Section 6.7 relate 5.13(c) shall (1) prevent the Seller or its Affiliates from performing its obligations under this Agreement, (2) prohibit the Seller or its Affiliates from placing general advertisements to matters which hire employees that are not targeted toward employees the soliciting of a special, unique and extraordinary character and a violation of any of the terms of whom for employment or hire would violate this Section 6.7 will cause irreparable injury to Newco, 5.13(c) or (3) prohibit the amount Seller or its Affiliates from soliciting or hiring any person who has ceased being employed by the Company for a period of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law or in equitysix months.
(d) The parties hereto agree thatparties, if on behalf of themselves and each of their Affiliates, acknowledges and agrees that the time, activity and geographic restrictions set forth in this Section 5.13 are reasonable and necessary to protect the other party’s interest. If any of the restrictions contained in this Section 5.13 is found by any court of competent jurisdiction in a final nonappealable judgment determines to be unenforceable because it is too broad, then such restriction shall nevertheless remain effective but shall be considered amended to have the broadest terms which such court may find enforceable; and the parties, on behalf of themselves and each of their Affiliates, acknowledge and agree that a specified time period, a specified geographical area, a specified business limitation any breach by the other party or any other relevant feature of their respective Affiliates of any provision of this Section 6.7 is unreasonable5.13, arbitrary would cause irreparable damage to such party for which monetary damages and other remedies at law may not be adequate. Therefore, if a party or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement any of the Subsidiaries their Affiliates are in breach of the Company to the provisions any provision of this Section 6.7 5.13, the parties hereto agree that the non-breaching party shall be entitled, in form addition to the other remedies as may be provided by applicable Law, to specific performance, injunctive relief and content reasonably satisfactory other equitable relief to Newcoprevent or restrain a breach of, or to enforce, this Section 5.13, which right to equitable relief will not be exclusive of, but will be in addition to, all other remedies to which the parties may be entitled under this Agreement, at law or in equity (including, without limitation, the right to recover monetary damages). In the event that any court will not reform any covenants set forth in this Section 5.13, then the parties agree to amend such covenant to set forth the maximum limitations permitted by applicable Law.
Appears in 1 contract
Non-Competition; Non-Solicitation; Confidentiality. (a) Seller acknowledges that the use by Seller of customer and supplier lists, know-how, goodwill and other proprietary business information and trade secrets of the Business in a business or activity that competes with the Business (as established below) would provide the competing business with an unfair advantage over the Business. Accordingly, Buyer wishes to restrict Seller’s use of such information and its ability to compete with Buyer. Seller agrees, in consideration for the Purchase Price, to comply with the terms of this Section 5.5, all of which are reasonable and necessary to protect the confidential business information and trade secrets being acquired by Buyer and to prevent any unfair advantage from being conferred upon a competing business of Buyer. For a period of three years after the Closing (the “Restriction Period” ), neither Seller nor its Affiliates (other than shareholders) shall directly or indirectly (1) operate any Website the principal focus of which is the sharing, printing or storing of photographs (a “Prohibited Business” ), (2) own an interest in, finance, manage or control or be an equity holder of, any Prohibited Business or (3) engage in any practice the purpose or effect of which is to intentionally evade the provisions of this covenant; provided, however, that nothing set forth in this Section 5.5 shall prohibit Seller or its Affiliates (other than shareholders) from (x) passive investments in the securities of any entity that Seller does not participate in, manage, operate or control that may directly or indirectly be engaged in any Prohibited Business the foregoing is further limited to investments in privately-held entities equal to 20% or less and in publicly-held entities equal 5% less, each of the outstanding securities of such entity, (y) acquiring a Prohibited Business as part of an acquisition (including, without limitation, by means of an asset purchase, stock purchase, merger, consolidation or other form of corporate reorganization) of another business or person (an “Acquired Business”); provided that, if the Acquired Business has in excess of one million unique visitors per month for the most recently completed fiscal year for such Acquired Business or more than 15% of the consolidated revenues of such Acquired Business are derived from the Closing Date until Prohibited Business, then Seller and its Affiliates (other than shareholders) hereby agree to divest the fifth (5th) anniversary portion of the Closing DateAcquired Business that operates the Prohibited Business as promptly as possible, neither using reasonable diligence but in no event later than 12 months (provided, that such period of 12 months may be extended with Buyer’s consent, which consent shall not be unreasonably withheld provided that Seller had been and continues to work diligently and in good faith to sell the Company nor Prohibited Business) after such acquisition, or (z) being acquired (including, without limitation, by means of an asset purchase, stock purchase, merger, consolidation or other form of corporate reorganization) by another person that directly or indirectly engages in any Prohibited Business. For the avoidance of its Subsidiaries shalldoubt, (A) this Section 5.5 shall not restrict any person that, directly or indirectly, owncontrols Seller now or at any time hereafter, manage, operate, control including any person that acquires or participate in the ownership, management, operation or control of any businesscombines with Seller, whether by means of an asset purchase, stock purchase, merger, consolidation or other form of corporate reorganization, and (B) a Website that includes photo sharing as a feature or function of such Website shall not, in corporateand of itself, proprietorship be deemed to be a Prohibited Business so long as such Website’s principal focus is not the sharing, printing or partnership form storing of photographs and the revenue or otherwisevisitor test is not met. For purposes of this Section “Website” shall mean any site on the internet with a distinct URL. This Section 5.5 shall cease to be applicable to any person at such time as it is no longer an Affiliate of Seller. This Section 5.5(a) shall terminate immediately upon a Change of Control of Seller. “Change of Control” means (a) any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, engaged in as amended (the Business or that otherwise competes with the Business (a “Restricted BusinessExchange Act”). The parties hereto specifically acknowledge and agree that ) becomes the remedy at law for any breach “beneficial owner” (as defined in Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, of securities of Seller representing 50% or more of (A) the foregoing will be inadequate and that Newco, in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without outstanding shares of common stock of Seller or (B) the necessity combined voting power of proving actual damage or posting any bond whatsoever.
Seller’s then outstanding securities; (b) For Seller is party to a period from merger or consolidation which results in the Closing Date voting securities of Seller outstanding immediately prior thereto failing to the fifth continue to represent (5th) anniversary either by remaining outstanding or by being converted into voting securities of the Closing Date, neither the Company nor any of its Subsidiaries shall: surviving or another entity) at least fifty (i50%) cause, solicit, induce or encourage any Employees percent of the Company to leave combined voting power of the voting securities of Seller or such employment surviving or hire, employ other entity outstanding immediately after such merger or otherwise engage any such individualconsolidation; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship.
(c) The covenants and undertakings contained the sale or disposition of all or substantially all of Seller’s assets, in this Section 6.7 relate to matters which are one transaction or a series of a special, unique and extraordinary character and a violation related transactions (or consummation of any of the terms of this Section 6.7 will cause irreparable injury to Newco, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law or in equitytransaction having similar effect).
(d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement of the Subsidiaries of the Company to the provisions of this Section 6.7 in form and content reasonably satisfactory to Newco.
Appears in 1 contract
Non-Competition; Non-Solicitation; Confidentiality. (a) For a period from the Closing Date until the fifth (5th) third anniversary of the Closing Date, neither the Company nor any Shareholder shall not, and shall cause each of its Subsidiaries shallAffiliates not to, directly or indirectly, ownown any interest in, manage, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, engaged in the Business manufacture, sale, rental, distribution or that otherwise competes with marketing of any Competing Products in the Business Territory or the provision of a Competing Service in the Territory (each, a “Restricted Business”); provided, however, that the restrictions contained in this Section 6.9(a) shall not restrict (i) the acquisition by the Shareholder and its Affiliates, directly or indirectly, of less than five percent (5%) in the aggregate of any class or series of the outstanding capital stock or other equity or economic interest of any publicly-traded entity engaged in a Restricted Business or (ii) the acquisition and operation by the Shareholder and its Affiliates of businesses engaged in a Restricted Business so long as (x) the revenues from such Restricted Business constitute less than twenty percent (20%) of the total revenues of any business acquired by the Shareholder and its Affiliates (measured for the four calendar quarters before the execution of the purchase agreement) and (y) the Shareholder and its Affiliates divest such Restricted Business within twelve (12) months of the closing of the acquisition. The parties hereto specifically acknowledge Notwithstanding the foregoing, and for the avoidance of doubt, the Parties hereby agree that to the remedy at law for any breach extent Shareholder or its Affiliates, as applicable, engages in the activities set forth on Schedule 6.9(a), it shall not be deemed a violation of the foregoing will be inadequate and that Newco, in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoeverthis Section 6.9(a).
(b) For a period from From the Closing Date to date of this Agreement until the fifth (5th) anniversary of Closing, the Closing DateShareholder shall not, neither the Company nor any and shall cause each of its Subsidiaries shall: (i) Affiliates and each of their respective Representatives not to, directly or indirectly, cause, solicit, induce or encourage any Employees to discontinue such Employee’s current employment with the Company or its Subsidiaries, or transfer, hire, employ or otherwise engage any such individual outside the Company or its Subsidiaries.
(c) From the Closing until the third anniversary of the Closing Date, the Shareholder shall not, and shall cause each of its Affiliates and each of their respective Representatives not to, directly or indirectly, solicit or encourage any Employees to discontinue employment by the Company to leave such employment or its Subsidiaries or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Company and any Person it being understood that becomes a client or customer of the Business after the Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship.
(c) The covenants and undertakings contained in this Section 6.7 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 6.7 will cause irreparable injury to Newco, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law or in equity.
(d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement of the Subsidiaries of the Company to the provisions of this Section 6.7 in form and content reasonably satisfactory to Newco.6.9
Appears in 1 contract
Samples: Stock Purchase Agreement
Non-Competition; Non-Solicitation; Confidentiality. (a) For During the Agreement Term and for a period from of two years commencing on the Closing Date until date of termination or expiration of this Agreement, Xxxxxxx will not engage in any capacity in a business (x) competitive with the fifth Business and (5thy) anniversary located anywhere in the world, except as an officer, director, shareholder or employee of the Closing DateCompany or its affiliates and subsidiaries.
(b) During the Agreement Term and for a period of two years commencing on the date of termination or expiration of this Agreement, neither Xxxxxxx will not, unless acting with the Company nor any express written consent of its Subsidiaries shallthe Board of Directors of the Company, directly or indirectly, ownsolicit or interfere with, manage, operate, control or participate in endeavor to entice away:
(i) any person who was employed by the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, engaged Company in the Business during the twelve month period immediately preceding the date of termination or that expiration of this Agreement; (ii) any person who otherwise competes with performed services on a regular basis for the Company in the Business during the twelve month period immediately preceding the date of termination or expiration of this Agreement; or (a “Restricted Business”). The parties hereto specifically acknowledge and agree that the remedy at law for any breach of the foregoing will be inadequate and that Newco, in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoever.
(biii) For a period from the Closing Date with respect to the fifth (5th) anniversary of the Closing DateBusiness, neither the Company nor any of its Subsidiaries shall: (i) cause, solicit, induce person or encourage any Employees entity who was a customer or client of the Company to leave such employment (with whom Xxxxxxx or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Company and any Person that becomes a client or customer of the Business after the Closinghas had substantial business contact) or any other Person person or entity who requested or received a proposal from the Company (if Xxxxxxx or the Company has a material had substantial business relationship contact with such person or entity or has expended substantial efforts in the Business, to terminate or modify preparation of any such actual or prospective relationshipproposal).
(c) The covenants During the Agreement Term and undertakings contained at all times thereafter Xxxxxxx agrees to hold in this Section 6.7 relate confidence all matters and things related to matters which are the business of the Company or any of its affiliates and subsidiaries of a specialconfidential or secret nature as to which Xxxxxxx may now have knowledge or acquire knowledge during the Agreement Term and will not, unique without the consent of the Board of Directors, use any such matter or thing or disclose to others any such matter or thing related to the business of the Company or any of its affiliates and extraordinary character and subsidiaries, provided, however, that in each case, Xxxxxxx does not agree to hold in confidence information (i) otherwise publicly available (other than as a violation result of any a breach of the terms of this Section 6.7 will cause irreparable injury Agreement by Xxxxxxx), (ii) required to Newco, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided disclosed by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at applicable law or in equitycourt order, or (iii) disclosed to him by a party who to his knowledge has no duty of confidence to the Company or any of its affiliates and subsidiaries.
(d) It is expressly understood by and between the Company and Xxxxxxx that the covenants contained in this Section 4 shall be deemed to be a series of independent covenants. The parties hereto Company and Xxxxxxx expressly agree thatthat the character, if duration and geographical scope of these covenants are reasonable in light of the circumstances as they exist at the date upon which this Agreement has been executed. However, should a determination nonetheless be made by any court tribunal of competent jurisdiction that the character, duration or geographical scope of these covenants are unreasonable in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature light of this Section 6.7 is unreasonable, arbitrary or against public policythe circumstances as they then exist, then a lesser time period, geographical area, business limitation or other relevant feature which it is determined by such court to be reasonable, not arbitrary the intention and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement of the Subsidiaries Company and Xxxxxxx that these covenants shall be construed by such tribunal in such a manner as to impose only those restrictions on the conduct of Xxxxxxx which are reasonable in light of the circumstances as they then exist and necessary to insure the Company of the intended benefit of these covenants. If, in any proceeding, such tribunal shall refuse to enforce all of the provisions separate covenants deemed included herein because, taken together, they are more extensive than necessary to assure the Company of this Section 6.7 the intended benefit, it is expressly understood and agreed between the parties that those of such covenants which, if eliminated, would permit the remaining separate covenants to be enforced in form and content reasonably satisfactory to Newcosuch proceeding shall, for the purposes of such proceeding, be deemed eliminated herefrom.
Appears in 1 contract
Non-Competition; Non-Solicitation; Confidentiality. (a) For a period from Executive acknowledges and recognizes the Closing Date until the fifth (5th) anniversary highly competitive nature of the Closing Date, neither business of the Company nor and accordingly agrees that, in consideration of this Agreement, the rights conferred hereunder, and the payments hereunder, during the Non-Compete Term (as hereinafter defined), Executive will not engage, either directly or indirectly, as an employee, consultant or independent contractor, or as a principal for his own account or jointly with others, or as a stockholder in any corporation or joint stock association which designs, develops, manufactures, distributes, sells or markets the type of products or services sold, distributed or provided by the Company or its Subsidiaries shallsubsidiaries during the two year period prior to the Termination Date (the "Business"); provided, that nothing herein shall prevent Executive from owning, directly or indirectly, ownnot more than 5% of the outstanding shares of, manageor any other equity interest in, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, entity engaged in the Business and listed or that otherwise competes with the Business (traded on a “Restricted Business”). The parties hereto specifically acknowledge and agree that the remedy at law for any breach of the foregoing will be inadequate and that Newco, national securities exchanges or in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoeveran over-the-counter securities market.
(b) For a During the period from the Closing date of this Agreement until the date two years following the Termination Date to ("Non-Compete Term"), Executive will not (i) employ or solicit, or receive or accept the fifth (5th) anniversary performance of services by, any active employee of the Closing Date, neither the Company nor or any of its Subsidiaries shall: (i) causesubsidiaries who is employed primarily in connection with the Business, solicitexcept in connection with general, induce or encourage any Employees of the Company to leave non-targeted recruitment efforts such employment or hire, employ or otherwise engage any such individual; as advertisements and job listings or (ii) cause, induce or encourage solicit for business (relating to the Business) any material actual or prospective client, customer, supplier or licensor of the Business (including any existing person who is a customer or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) or any other Person who has of its subsidiaries, unless such person shall have ceased to have been such a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipcustomer for a period of at least six months.
(c) The covenants and undertakings contained in this Section 6.7 relate to matters which are of a special, unique and extraordinary character and a violation Executive will not at any time disclose or use for his own benefit or purposes or the benefit or purposes of any other person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise other than the Company and any of its subsidiaries, any trade secrets, information, data, or other confidential information relating to customers, development programs, costs, marketing, trading, investment, sales activities, promotion, credit and financial data, financing methods, plans, or the business and affairs of the terms Company generally, or of any subsidiary of the Company, unless required to do so by applicable law or court order, subpoena or decree or otherwise required by law, with reasonable evidence of such determination promptly provided to the Company. The preceding sentence of this Section 6.7 will cause irreparable injury sub-clause (c) shall not apply to Newco, information which is not unique to the amount Company or which is generally known to the industry or the public other than as a result of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any Executive's breach of this Section 6.7 covenant. Executive agrees that within 10 days after the Termination Date, he will be inadequatereturn to the Company immediately all memoranda, books, papers, plans, information, letters and other data, and all copies thereof or therefrom, in any way relating to the business of the Company and its subsidiaries, except that he may retain personal notes, notebooks and diaries. ThereforeExecutive further agrees that he will not retain or use for his account at any time any trade names, Newco will be entitled to an injunction, restraining order trademark or other equitable relief from any court proprietary business designation used or owned in connection with the business of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder Company or at law or in equityits subsidiaries.
(d) The parties hereto agree thatIt is expressly understood and agreed that although Executive and the Company consider the restrictions contained in this Section 8 to be reasonable, if any a final judicial determination is made by a court of competent jurisdiction in a final nonappealable judgment determines that a specified the time period, a specified geographical area, a specified business limitation or territory or any other relevant feature of restriction contained in this Section 6.7 Agreement is unreasonablean unenforceable restriction against Executive, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement of the Subsidiaries of the Company to the provisions of this Section 6.7 Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any tribunal of competent jurisdiction finds that any restriction contained in form this Agreement is unenforceable, and content reasonably satisfactory such restriction cannot be amended so as to Newcomake it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
Appears in 1 contract
Non-Competition; Non-Solicitation; Confidentiality. (a) For While the Optionee is employed by the Company (including its Subsidiaries) and for a period of one (1) year after the Optionee’s Separation from Service for any reason (the Closing Date until “Restricted Period”), the fifth (5th) anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, Optionee will not directly or indirectly:
(i) engage in any business or enterprise (whether as owner, ownpartner, manageofficer, operatedirector, control or participate in the ownershipemployee, managementconsultant, operation or control of any businessinvestor, whether in corporate, proprietorship or partnership form lender or otherwise, engaged in except as the Business holder of not more than one percent (1%) of the outstanding stock of a publicly-held company), that develops, manufactures, markets or sells any product or service that otherwise competes with any product or service developed, manufactured, marketed or sold or, to the Business (Optionee’s knowledge, planned to be developed, manufactured, marketed or sold, by II-VI or its Subsidiaries while the Optionee was employed by the Company or a “Restricted Business”). The parties hereto specifically acknowledge and agree that Subsidiary, within the remedy at law for United States of America and/or any breach other country within which II-VI or its Subsidiaries have customers or prospective customers as of the foregoing will be inadequate date of such Separation from Service.
(ii) (A) solicit for the purpose of selling or distributing any products or services that are the same or similar to those developed, manufactured, marketed or sold by II-VI or its Subsidiaries, (1) any customers of II-VI or its Subsidiaries, (2) any prospective customers known by the Optionee to have been solicited by II-VI or its Subsidiaries within the twelve (12) months prior to the Optionee’s Separation from Service, or (3) any distributors, sales agents or other third-parties who sell to or refer potential customers in need of the types of products and services produced, marketed, licensed, sold or provided by II-VI or its Subsidiaries who have become known to the Optionee as a result of his/her employment with the Company (including its Subsidiaries), or (B) induce or attempt to induce any vendor, supplier, licensee or other business relation of II-VI or its Subsidiaries to cease or restrict doing business with II-VI or its Subsidiaries, or in any way interfere with the relationship between any such vendor, supplier, licensee or business relation and II-VI or its Subsidiaries.
(iii) either alone or in association with others (A) solicit, or permit any organization directly or indirectly controlled by the Optionee to solicit, any employee of II-VI or its Subsidiaries to leave the employ of II-VI or its Subsidiaries, or (B) solicit for employment, hire or engage as an independent contractor, or permit any organization directly or indirectly controlled by the Optionee to solicit for employment, hire or engage as an independent contractor, any person who was employed by II-VI or its Subsidiaries at any time during the term of the Optionee’s employment with the Company or a Subsidiary; provided that Newco, in addition this clause (B) shall not apply to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity individual whose employment with II-VI or its Subsidiaries has been terminated for a period of proving actual damage one year or posting any bond whatsoeverlonger.
(b) For a period from While the Closing Date to the fifth (5th) anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall: (i) cause, solicit, induce or encourage any Employees of the Company to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of Optionee is employed by the Company and for a period of one (1) year after the Optionee’s Separation from Service for any Person that becomes a client reason (the “Restricted Period”), the IIVI NQSO 111618 Optionee will not directly or customer indirectly either alone or in association with others solicit, or permit any organization directly or indirectly controlled by the Optionee to solicit, any employee or independent contractor of II-VI or its Subsidiaries to leave the employ or service of II-VI or its Subsidiaries. The Restricted Period will be tolled during and for any period of time during which the Optionee is in violation of the Business after restrictive covenants contained in this Section 12 and for any period of time which may be necessary to secure an order of court or injunction, either preliminary or permanent, to enforce such covenants, such that the Closing) or any other Person who has a material business relationship cumulative time period during which the Optionee is in compliance with the Business, to terminate or modify any such actual or prospective relationshiprestrictive covenants contained in this Section 12(a) will not exceed the one (1)-year period set forth above.
(c) The covenants Optionee acknowledges that certain materials, including information, data, technology and undertakings contained in this Section 6.7 relate other materials relating to matters which are customers, programs, costs, marketing, investment, sales activities, promotion, credit and financial data, manufacturing processes, financing methods, plans or the business and affairs of a special, unique II-VI and extraordinary character its Subsidiaries constitute proprietary confidential information and a violation of any of the terms of this Section 6.7 will cause irreparable injury to Newco, the amount of which will be impossible to estimate or determine and which cannot be adequately compensatedtrade secrets. Accordingly, the remedy Optionee will not at law any time during or after the Optionee’s employment with the Company or a Subsidiary disclose or use for the Optionee’s own benefit or purposes or the benefit or purposes of any other person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise, other than the Company (including its Subsidiaries), any proprietary confidential information or trade secrets; provided that the foregoing shall not apply to information which is not unique to II-VI and its Subsidiaries or which is generally known to the industry or the public other than as a result of the Optionee’s breach of this Section 6.7 covenant. The Optionee agrees that, upon the Optionee’s Separation from Service for any reason, the Optionee will be inadequateimmediately return to II-VI all property of II-VI and its Subsidiaries including all memoranda, books, technical and/or lab notebooks, customer product and pricing data, papers, plans, information, letters and other data, and all copies thereof or therefrom, which in any way relate to the business of II-VI and its Subsidiaries, except that the Optionee may retain personal items. ThereforeThe Optionee further agrees that the Optionee will not retain or use for the Optionee’s account at any time any trade names, Newco will be entitled to an injunction, restraining order trademark or other equitable relief from any court proprietary business designation used or owned in connection with the business of competent jurisdiction in the event of any breach of this Section 6.7. The rights II-VI and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law or in equityits Subsidiaries.
(d) The parties hereto agree thatNothing herein is intended to or shall limit, prevent, impede or interfere with the Optionee’s non-waivable right, without prior notice to the Company, to provide information to the government, participate in investigations, testify in proceedings regarding the Company’s past or future conduct, or engage in any activities protected under whistleblower statutes, or to receive and fully retain a monetary award from a government-administered whistleblower award program for providing information directly to a government agency. Further, the Optionee understands that pursuant to the Defend Trade Secrets Act of 2016, the Optionee shall not be held criminally, or civilly, liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in confidence either directly or indirectly to a Federal, State, or local government official, or an attorney, for the sole purpose of reporting, or investigating, a violation of law. Moreover, the Optionee understands that he or she may disclose trade secrets in a complaint, or other document, filed in a lawsuit, or other proceeding, if any court of competent jurisdiction in such filing is made under seal. Finally, the Optionee understands that if he or she files a final nonappealable judgment determines that lawsuit alleging retaliation by the Company for reporting a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement suspected violation of the Subsidiaries of law, the Company Optionee may disclose the trade secret to the provisions of this Section 6.7 attorney and use the trade secret in form the court proceeding, so long as any document IIVI NQSO 111618 containing the trade secret is filed under seal and content reasonably satisfactory the Optionee does not disclose the trade secret except pursuant to Newcocourt order.
Appears in 1 contract
Non-Competition; Non-Solicitation; Confidentiality. (a) For a period from Executive acknowledges and recognizes the Closing Date until the fifth (5th) anniversary highly competitive nature of the Closing Date, neither business of the Company nor and accordingly agrees that, in consideration of this Agreement, the rights conferred hereunder, and the payments hereunder, during the Non-Compete Term, Executive will not engage, either directly or indirectly, as an employee, consultant or independent contractor, or as a principal for his own account or jointly with others, or as a stockholder in any corporation or joint stock association which designs, develops, manufactures, distributes, sells or markets the type of products or services sold, distributed or provided by the Company or its Subsidiaries shallsubsidiaries during the two year period prior to the Effective Date (the "Business"); provided, that nothing herein shall prevent Executive from owning, directly or indirectly, ownnot more than 5% of the outstanding shares of, manageor any other equity interest in, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, entity engaged in the Business and listed or that otherwise competes with the Business (traded on a “Restricted Business”). The parties hereto specifically acknowledge and agree that the remedy at law for any breach of the foregoing will be inadequate and that Newco, national securities exchanges or in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoeveran over-the-counter securities market.
(b) For a During the period from the Closing Date to date of this Agreement until December 31, 2003 ("Non-Compete Term"), Executive will not (i) directly or indirectly employ or solicit, or receive or accept the fifth (5th) anniversary performance of services by, any active employee of the Closing Date, neither the Company nor or any of its Subsidiaries shall: (i) causesubsidiaries who is employed primarily in connection with the Business, solicitexcept in connection with general, induce or encourage any Employees of the Company to leave non-targeted recruitment efforts such employment or hire, employ or otherwise engage any such individual; as advertisements and job listings or (ii) cause, induce or encourage solicit for business (relating to the Business) any material actual or prospective client, customer, supplier or licensor of the Business (including any existing person who is a customer or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) or any other Person who has of its subsidiaries, unless such person shall have ceased to have been such a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipcustomer for a period of at least six months.
(c) The covenants and undertakings contained in this Section 6.7 relate to matters which are of a special, unique and extraordinary character and a violation Executive will not at any time disclose or use for his own benefit or purposes or the benefit or purposes of any other person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise other than the Company and any of its subsidiaries, any trade secrets, information, data, or other confidential information relating to customers, development programs, costs, marketing, trading, investment, sales activities, promotion, credit and financial data, financing methods, plans, or the business and affairs of the terms Company generally, or of any subsidiary of the Company, unless required to do so by applicable law or court order, subpoena or decree or otherwise required by law, with reasonable evidence of such determination promptly provided to the Company. The preceding sentence of this Section 6.7 will cause irreparable injury sub-clause (c) shall not apply to Newco, information which is not unique to the amount Company or which is generally known to the industry or the public other than as a result of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any Executive's breach of this Section 6.7 covenant. Executive agrees that within 10 days after the Effective Date, he will be inadequatereturn to the Company immediately all memoranda, books, papers, plans, information, letters and other data, and all copies thereof or therefrom, in any way relating to the business of the Company and its subsidiaries, except that he may retain personal notes, notebooks and diaries. ThereforeExecutive further agrees that he will not retain or use for his account at any time any trade names, Newco will be entitled to an injunction, restraining order trademark or other equitable relief from any court proprietary business designation used or owned in connection with the business of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder Company or at law or in equityits subsidiaries.
(d) The parties hereto agree thatIt is expressly understood and agreed that although Executive and the Company consider the restrictions contained in this Section 6 to be reasonable, if any a final judicial determination is made by a court of competent jurisdiction in a final nonappealable judgment determines that a specified the time period, a specified geographical area, a specified business limitation or territory or any other relevant feature of restriction contained in this Section 6.7 Agreement is unreasonablean unenforceable restriction against Executive, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement of the Subsidiaries of the Company to the provisions of this Section 6.7 Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any tribunal of competent jurisdiction finds that any restriction contained in form this Agreement is unenforceable, and content reasonably satisfactory such restriction cannot be amended so as to Newcomake it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
Appears in 1 contract
Non-Competition; Non-Solicitation; Confidentiality. (a) For a Each Seller, for itself and on behalf of its Affiliates, hereby agrees that neither it nor any of its Affiliates shall:
(i) during the period from commencing on the Closing Date until and ending on the fifth third (5th3rd) anniversary of the Closing Date (the “Restricted Period”), own or operate a global network of subsea and terrestrial fiber-optic capacity and related offices, network and support facilities that competes with the Business; provided, however, that nothing in this Section 5.15 shall prevent or impede Tyco Telecommunications (US) Inc. or any of its Affiliates from exercising all or any of its rights to enforce its rights under (including exercising its remedies against a customer’s breach of) an agreement for the supply of an undersea fiber optic cable system; and
(ii) during the Restricted Period, persuade or attempt to persuade any third party which is a customer, client or active prospect of the Business to cease doing business with the Business or to reduce the amount of business such Person does with the Business or otherwise interfere with Purchaser’s current or future commercial or other relationships with any such customers, clients or active prospects of the Business.
(b) During the period commencing on the Closing Date and ending on the first (1st) anniversary of the Closing Date, neither the Company Tyco Telecommunications (US) Inc. nor any of its Subsidiaries shall, Affiliates controlled by it shall directly or indirectly, own, manage, operate, control indirectly employ or participate in solicit the ownership, management, operation or control employment of any business, whether in corporate, proprietorship Business Employee then employed by Purchaser (or partnership form or otherwise, engaged in the Business or that otherwise competes with the Business (a “Restricted Business”). The parties hereto specifically acknowledge and agree that the remedy at law for who remains employed by any breach of the foregoing will be inadequate and that Newco, in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoever.
(b) For a period from the Closing Date to the fifth (5th) anniversary of the Closing Date, neither the Conveyed Company nor any of its Subsidiaries shall: (i) cause, solicit, induce or encourage any Employees of the Company to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Company and any Person that becomes a client or customer of the Business immediately after the Closing) without Purchaser’s prior written consent. The term “solicit the employment” shall not be deemed to include generalized searches for employees through a public medium (including any newspaper or web posting), employment firms or otherwise that are not focused on individuals employed by Purchaser or any other Person who has a material business relationship with the Business, to terminate or modify any successor during such actual or prospective relationshipperiod.
(c) The covenants Each Seller, for itself and undertakings contained on behalf of its Affiliates, shall during the Restricted Period, keep confidential and not disclose to any third party any data relating to customers of the Business, marketing plans and strategies or budgets for the Business, or pricing for services of the Business; provided, that the Sellers and their Affiliates may also use such materials for the sole purpose of operating their respective businesses in this Section 6.7 relate the ordinary course. If a Seller or any of its Affiliates are legally required to matters which are of a special, unique and extraordinary character and a violation of disclose any of the terms foregoing materials (whether by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process), Sellers shall, or shall cause such Affiliate, to provide Purchaser with written notice of this Section 6.7 will cause irreparable injury to Newco, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to such request so that Purchaser may seek an injunction, restraining appropriate protective order or other equitable relief from any court appropriate remedy. If such protective order or remedy is not obtained, Seller or such Affiliate, may disclose only that portion of competent jurisdiction in the event of any breach of this Section 6.7. The rights foregoing materials which such Person is legally required to disclose, and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law or in equity.
(d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company Sellers shall use exercise its commercially reasonable efforts to obtain assurance that confidential treatment will be accorded to such materials so disclosed.
(d) Purchaser acknowledges and agrees that (i) the agreement ownership of securities by Sellers and their Affiliates representing on a fully-diluted basis less than 5% of the Subsidiaries outstanding voting power of a Person, (ii) the acquisition by Sellers or any of their Affiliates of any corporation, partnership or other Person who directly or indirectly owns or operates a global network of subsea and terrestrial fiber-optic capacity and related assets which account for less than twenty percent (20%) of the Company annual consolidated gross revenue of such Person, (iii) the use, sale, lease or sublease of any capacity on the Network Facilities owned or leased by Seller or any of its Affiliates, and (iv) the continued operation of the network design, manufacture, construction, testing, installation and commissioning, and marine services and maintenance operations of Tyco Telecommunications (US), Inc. or its Affiliates (the “System Supply Business”) (including the ownership and operation of any system built for any customer of the System Supply Business for which title has not passed to such customer) or the ownership or operation of a business substantially similar to the System Supply Business by Sellers or any of their Affiliates, shall not be considered competition with the Business for purposes of the foregoing provisions of this Section 6.7 5.15 or otherwise prohibited or restricted by, or otherwise in form and content reasonably satisfactory to Newcoviolation of, any of the foregoing provisions of this Section 5.15.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Videsh Sanchar Nigam LTD)
Non-Competition; Non-Solicitation; Confidentiality. (a) For a period from Each Shareholder Party acknowledges and agrees that, during the Closing Date until the fifth (5th) anniversary Restrictive Period, such Shareholder Party will not, in all or any part of the Closing DateRestricted Territory, neither the Company nor whether on its, his or her own account or in association or conjunction with or on behalf of any of its Subsidiaries shallother Person, directly or indirectly, ownand whether as an employee, managedirector, operateofficer, control joint venture, partner, stockholder, lender, principal, agent, consultant, advisor, owner, investor or participate in any other capacity whatsoever, (i) be employed by; (ii) carry on or be engaged in; (iii) perform services in respect of; (iv) lend money to or otherwise invest in; (v) guarantee the ownershipdebts or obligations of; or (vi) be concerned with or interested in, managementany other business or undertaking that is the same as or similar to, operation or control of competitive in any businessway with, whether in corporate, proprietorship or partnership form or otherwise, engaged in the Business or that otherwise competes with offers products or services that are the Business same as or similar to, or are competitive in any way with, those offered or, to the knowledge of such Shareholder Party, planned to be offered, and reasonably expected to be pursued, by the Business; provided, that nothing in this Section 5.8(a) shall prohibit such Shareholder Party from being a passive owner of not more than two percent (a “Restricted Business”). The parties hereto specifically acknowledge and agree that the remedy at law for any breach 2%) of the foregoing will be inadequate and that Newcooutstanding stock of any class of a corporation which is publicly traded so long as such Shareholder Party, as applicable, does not have any active participation in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity business of proving actual damage or posting any bond whatsoeversuch corporation.
(b) For a period Each Shareholder Party covenants and agrees that, during the Restrictive Period, such Shareholder Party will not, directly or indirectly, either as an individual, employee, consultant, associate, broker, director, officer, owner, investor, agent or stockholder or otherwise on behalf of any Person:
(i) canvass or solicit the business of (or procure or assist the canvassing or soliciting or the business of) any customer, prospective customer, supplier or prospective supplier for any purpose that is competitive with the Business; or
(ii) supply (or procure or assist the supply of) any goods or services to any customer, prospective customer, supplier or prospective supplier for any purpose that is competitive with the Business.
(c) Each Shareholder Party covenants and agrees that, during the Restrictive Period, such Shareholder Party will not, directly or indirectly, in any capacity whatsoever, alone or in connection with any Person, (i) employ, engage, offer employment or engagement to or solicit the employment of engagement of or otherwise entice away from the Closing Date to the fifth (5th) anniversary employment or engagement of the Closing Date, neither the Company nor Surviving Entity or any of its Subsidiaries shall: (i) causeAffiliates, solicitany individual who is employed or engaged by the Company or any of its Affiliates, induce whether or encourage not such individual would commit any Employees breach of his or her contract or terms of employment or engagement by leaving the employ or the engagement of the Company to leave such employment Surviving Entity or hire, employ or otherwise engage any such individualof its Affiliates; or (ii) causeprocure or assist any Person to employ, induce engage, offer employment or encourage engagement or solicit the employment or engagement of any material actual individual who is employed or prospective client, customer, supplier engaged by the Surviving Entity or licensor any of its Affiliates or otherwise entice away from the employment or engagement of the Business (including any existing or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) Surviving Entity or any other Person who has a material business relationship with the Business, to terminate or modify of its Affiliates any such actual or prospective relationship.
(c) The covenants and undertakings contained in this Section 6.7 relate to matters which are of a specialindividual; provided, unique and extraordinary character and a violation of any of the terms of this Section 6.7 that such Shareholder Party will cause irreparable injury to Newco, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any in breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event 5.8(c) as a result of any breach solicitation that occurs as a result of this Section 6.7general advertisements not specifically directed at such employees. The rights and remedies provided by this Section 6.7 are cumulative and in addition For the avoidance of doubt, the foregoing will not permit the Shareholder Parties, directly or indirectly, from hiring any such employees that respond to any other rights and remedies which Newco may have hereunder or at law or in equitysuch general advertisements.
(d) The parties hereto agree thatNo Shareholder Party will, if on its, his or her own behalf or on behalf of or in connection with any court other Person, directly or indirectly, in any capacity whatsoever including as an employer, employee, principal, agent, joint venture, partner, stockholder or other equity holder, independent contractor, licensor, licensee, franchiser, franchisee, distributor, consultant, supplier or trustee or by and through any Person or otherwise, persuade or attempt to persuade any customer, prospective customer, supplier or prospective supplier or employee of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation the Surviving Entity or any other relevant feature of this Section 6.7 is unreasonable, arbitrary its Affiliates to discontinue or against public policy, then a lesser time period, geographical area, business limitation adversely alter such Person’s relationship with the Surviving Entity or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable partyany of its Affiliates.
(e) The Company During the Restrictive Period, each Shareholder Party will, and will cause its, his or her respective Affiliates and Representatives to, treat and hold in confidence all of the Confidential Information and not use or disclose any of the Confidential Information except as is reasonably required in connection with enforcing such Shareholder Party’s rights under this Agreement, preparing Tax Returns or conducting Tax audits or similar proceedings. In the event that any Shareholder Party or one of its, his or her respective Affiliates or Representatives is requested or required (by oral question or request for information or documents in any legal proceeding, interrogatory, subpoena, civil investigative demand or similar process) under applicable Law to disclose any Confidential Information, such Shareholder Party will notify Parent promptly of the request or requirement so that Parent may seek an appropriate protective Order or waive compliance with the provisions of this Section 5.8(e). If, in the absence of a protective Order or the receipt of a waiver hereunder, any Shareholder Party or one of its, his or her respective Affiliates or Representatives is, on the advice of counsel, compelled to disclose any Confidential Information to any tribunal or else stand liable for contempt, such Shareholder Party or its Affiliate or Representative, as applicable, may disclose the Confidential Information to the tribunal; provided, however, that such Shareholder Party shall use its commercially reasonable efforts to obtain obtain, at the agreement reasonable request and expense of Parent, an Order or other assurance that confidential treatment will be accorded to the Confidential Information.
(f) Each Shareholder Party acknowledges that (i) such Shareholder Party is selling, directly or indirectly, to Parent the shares of Common Stock in connection with the transactions contemplated by this Agreement, (ii) such Shareholder Party, as a direct or indirect equity owner of the Subsidiaries Company, benefits directly from the transactions contemplated by this Agreement, including the Mergers; and (iii) the covenants and agreements set forth in this Section 5.8 were a material inducement to Parent to enter into this Agreement and to perform its obligations hereunder.
(g) It is recognized and hereby acknowledged by the parties that a breach or violation by any party hereto of the Company covenants set forth in this Section 5.8 (the “Protective Covenants”) may cause irreparable harm and damage to the provisions other parties hereto in a monetary amount that may be difficult to ascertain. As a result, each party recognizes and hereby acknowledges that the other parties hereto shall be entitled to an injunction from any court of competent jurisdiction enjoining and restraining any breach or violation of any or all of the Protective Covenants by any other party hereto and that such right to injunction shall be cumulative and in addition to whatever other rights or remedies such party may possess hereunder, at law or in equity. Nothing contained in this Section 6.7 5.8(g) shall be construed to prevent the parties hereto from seeking and recovering Damages sustained by such parties as a result of any breach or violation by any other party hereto of any of the covenants or agreements contained in form the Protective Covenants; provided that no party shall be entitled to both specific performance and content reasonably satisfactory monetary damages with respect to Newcosuch matters.
(h) If at the time of enforcement of any of the Protective Covenants, a court shall hold that the duration, scope or area restrictions stated therein are unreasonable under circumstances then existing, the parties agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by applicable Law. Each Shareholder Party has consulted with legal counsel regarding the Protective Covenants and based on such consultation has determined and hereby acknowledges that the Protective Covenants are reasonable in terms of duration, scope and area restrictions and are necessary to protect the legitimate, protectable interests of the Surviving Entity, the goodwill of the business of the Surviving Entity and its Affiliates (including Parent) and the substantial investment in the Company made by Parent pursuant to this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Chavant Capital Acquisition Corp.)
Non-Competition; Non-Solicitation; Confidentiality. (a) For a period from Until the Closing Date until the fifth second (5th2nd) anniversary of the Closing Date, neither the Company nor any of no Seller shall, and each Seller shall cause its Subsidiaries shallAffiliates not to, directly or indirectly, own, manage, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, engaged in the Business distribution of wire products into the U.S., or that sells to any business that distributes such products into the U.S., or that otherwise competes with the Business Purchaser or its Affiliates (a “Restricted Business”). The parties hereto specifically acknowledge and agree ; provided, however, that the remedy at law for restrictions contained in this Section 7.5(a) shall not restrict the acquisition by any breach Seller, directly or indirectly, of less than 2% of the foregoing will be inadequate and outstanding capital stock of any publicly traded company engaged in a Restricted Business; 53 provided, further, that Newco, in addition any sales or other transactions with Purchaser or any of its Affiliates or any actions that are otherwise required for Sellers to any other relief available to it, fulfill their obligations under this Agreement shall be entitled to temporary and permanent injunctive relief without the necessity not constitute a violation of proving actual damage or posting any bond whatsoeverthis Section 7.5.
(b) For a period from Until the Closing Date to the fifth third (5th3rd) anniversary of the Closing Date, neither the Company nor any of no Seller shall, and each Seller shall cause its Subsidiaries shall: directors and Affiliates not to, (i) cause, solicit, induce or encourage any Employees Transferred Employee or any other employee of the Company Purchaser or its Affiliates to leave such employment or hire, employ or otherwise engage any such individual; individual or (ii) cause, induce or encourage any material actual or prospective client, customer, distributor or supplier or licensor of the Business (including any existing or former customer customer, distributor or supplier of the Company any Seller and any Person that becomes a client client, customer, distributor or customer supplier of the Business after the Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship.
(c) The covenants From and undertakings contained in this Section 6.7 relate after the date hereof, no Seller shall, and each Seller shall cause its Affiliates and their respective directors not to, directly or indirectly, disclose, reveal, divulge or communicate to matters which are any Person other than authorized officers, directors and employees of a specialPurchaser or use or otherwise exploit for its own benefit or for the benefit of anyone other than Purchaser, unique and extraordinary character and a violation of any Confidential Information (as defined below). Neither Sellers nor any of their respective directors, officers, employees and Affiliates shall have any obligation to keep confidential any Confidential Information if and to the terms extent disclosure thereof is specifically required by Law; provided, however, that in the event disclosure is required by applicable Law, the Seller shall, to the extent reasonably possible, provide Purchaser with prompt notice of such requirement prior to making any disclosure so that Purchaser may seek an appropriate protective order. For purposes of this Section 6.7 will cause irreparable injury 7.5(c), “Confidential Information” means any information with respect to Newcothe Business, including methods of operation, customers, customer lists, products, prices, fees, costs, Technology, inventions, Trade Secrets, know-how, Software, marketing methods, plans, personnel, suppliers, competitors, markets or other specialized information or proprietary matters. Confidential Information does not include, and there shall be no obligation hereunder with respect to, information that (i) is generally available to the public on the date of this Agreement or (ii) becomes generally available to the public other than as a result of a disclosure not otherwise permissible hereunder. For the avoidance of doubt, the amount of which will Customer List and the Wire Specifications shall be impossible to estimate or determine deemed Confidential Information for all purposes hereunder and which cannot shall be adequately compensated. Accordingly, the remedy at law for any breach of treated as such in accordance with this Section 6.7 will 7.5(c) and shall in no event be inadequate. Thereforedisclosed or made available to any third party in connection with such third party’s evaluation or purchase of any equipment, Newco will be entitled to an injunction, restraining order real property or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law or in equity.
(d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement assets of the Subsidiaries of the Company Sellers (including pursuant to the provisions of this Section 6.7 in form and content reasonably satisfactory to NewcoEilat Transfer).
Appears in 1 contract
Samples: Asset Purchase Agreement (International Wire Group Inc)
Non-Competition; Non-Solicitation; Confidentiality. (a) For Other than the ownership or operation by Xxx of assets that are used or held for use in connection with its exploration and production business from time to time that are of a type and nature used or held for use by Xxx as of the date hereof in connection with its exploration and production business, provided that such operation and use does not compete with the Business with respect to third Persons [REDACTED]* (the “Excluded E&P Business”), for a period of [REDACTED]* from and after the Closing Date until (the fifth (5th) anniversary “Noncompetition Period”), neither of the Closing Date, neither the Company Sellers nor any of its Subsidiaries their respective Affiliates shall, directly or indirectly, whether as principal, agent, partner, officer, director, stockholder, employee, consultant or otherwise, alone or in association with any other Person, own, manage, operate, control or control, participate in, invest in (other than (i) an investment that results in such Person owning less than 2% of the ownershipoutstanding voting stock of a publicly traded company, management, operation or control of any business(ii) the acquisition by a Party, whether in corporatethrough merger, proprietorship or partnership form change of control, assignment of assets, or otherwise, engaged of a Person, or the assets of a Person, (A) that, on the effective date of the acquisition, derives no more than the lesser of (x) [REDACTED]* or (y) [REDACTED]* of its annual revenues from activities that are directly or indirectly in competition with the Business or that otherwise competes (B) solely because such Person or such assets or business would, if owned or undertaken by Xxx, constitute the Excluded E&P Business, or (iii) the acquisition of either Seller or any of its Affiliates by a third Person), or, subject to the foregoing parenthetical, carry on a business which, directly or indirectly, is in competition with the Business [REDACTED]*.
(b) For [REDACTED]* after the Closing Date, neither of the Sellers nor their respective Affiliates shall, whether for their own account or for the account of any Person, solicit, offer employment to or hire any individual that is employed by the Company or any of the Subsidiaries on the Closing Date; provided, however, Sellers and their respective Affiliates shall not be prohibited from (i) initiating searches for employees through the use of non-directed general advertisement or through the engagement of firms to conduct searches that are not targeted or focused on the Company and the Subsidiaries or (ii) soliciting, hiring, or employing any Person that has been terminated by (or who has terminated his or her employment with) Xxxxxxxxx, the Company, or the relevant Subsidiary, provided that, unless the [REDACTED]* period provided for herein has earlier terminated, [REDACTED]* shall have elapsed from the date of such termination.
(c) After the Closing, each Seller shall (and shall cause each of their Affiliates to) maintain as confidential, and shall not (and shall cause each of their Affiliates not to) use or disclose, except as required by Law or as authorized in writing by Purchaser, any Confidential Information. Each Seller shall take all appropriate steps (and to cause each of its Affiliates to take all appropriate steps) to safeguard such Confidential Information and to protect it against disclosure, misuse, espionage, loss and theft, using the standard of care that they each use to protect their own similar confidential information (and in no event less than a “Restricted Business”reasonable standard of care). In the event a Seller or any of their Affiliates is required by Law to disclose any Confidential Information, such Seller shall promptly notify Purchaser in writing, which notification shall include the nature of the legal requirement and the extent of the required disclosure, and shall cooperate reasonably with Purchaser to preserve the confidentiality of such information consistent with applicable Law. The parties hereto specifically foregoing shall not apply to press releases or other announcements pursuant to Section 5.2 or Confidential Information that (i) is or becomes generally available to the public, other than as a result of breach of this Section 5.12(c) by a Seller; (ii) is acquired independently from a third Person that represents to a Seller or its Affiliate that it has, and Seller or such Affiliate does not otherwise have reason to believe that such Person does not have, the right to disseminate such information at the time it is acquired by Seller; or (iii) is used by Xxx in connection with the Excluded E&P Business; or (iv) is used or disclosed by a Seller in the enforcement of this Agreement or its rights hereunder or under any document executed pursuant to the transactions contemplated hereby. The Confidentiality Agreement shall terminate and be of no further force or effect as of the Closing.
(d) Sellers acknowledge and agree that the remedy at law for any breach of the foregoing will be inadequate and that Newcobreach, in addition to any other relief available to itor threatened breach, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoever.
(b) For a period from the Closing Date to the fifth (5th) anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall: (i) cause, solicit, induce or encourage any Employees of the Company to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship.
(c) The covenants and undertakings contained in this Section 6.7 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms provisions of this Section 6.7 will cause irreparable injury to Newco, the amount of which 5.12 will be impossible to estimate or determine inadequate and, accordingly, each Seller covenants and which cannot be adequately compensated. Accordinglyagrees that Purchaser shall, the remedy at law for any breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco Purchaser may have hereunder at Law, be entitled to equitable relief, including injunctive relief, and to the remedy of specific performance with respect to any breach or at law or threatened breach of such covenant, as may be available from any court of competent jurisdiction. In addition, each Seller and Purchaser agree that the terms of the covenant in equity.
(d) The parties hereto agree that, if this Section 5.12 are fair and reasonable and are necessary to accomplish the full transfer of the goodwill and other intangible assets contemplated hereby. In the event that any of the covenants contained in this Section 5.12 shall be determined by any court of competent jurisdiction to be unenforceable for any reason whatsoever, then any such provision or provisions shall not be deemed void, and the parties hereto agree that said limits may be modified by the court and that said covenant contained in this Section 5.12 shall be amended in accordance with said modification, it being specifically agreed by the parties that it is their continuing desire that this covenant be enforced to the full extent of its terms and conditions or if a final nonappealable judgment determines that a specified time periodcourt finds the scope of the covenant unenforceable, a specified geographical area, a specified business limitation or any other relevant feature the court should redefine the covenant so as to comply with applicable Law. Each Seller shall be responsible for compliance with the terms of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary 5.12 severally and not against public policy may be enforced against the applicable partyjointly.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement of the Subsidiaries of the Company to the provisions of this Section 6.7 in form and content reasonably satisfactory to Newco.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Rex Energy Corp)
Non-Competition; Non-Solicitation; Confidentiality. (a) For In order for Buyer to protect and preserve the going concern value and goodwill of the Company, and as a material inducement to Buyer to enter into this Agreement, Seller on behalf of itself and each of the controlled Affiliates of Mount Olympus Holdings, Inc. agrees that such Persons will not, following the Closing Date:
(i) for a period from of two (2) years, solicit or encourage, any customer of the Company as of the Closing Date until to reduce or terminate its business relationship with the fifth Company;
(5thii) anniversary for a period of two (2) years, (A) solicit or encourage, any Key Personnel or any other employee or exclusive independent contractor of the Company that was employed or engaged at the time of the Closing Date, neither to resign or otherwise leave the employ or engagement of the Company nor or (B) hire, employ or engage any such Key Personnel or other employee or independent contractor, to perform services other than for the benefit of the Company; provided, however, that the foregoing will not prohibit or restrict Seller or any of its Subsidiaries shallAffiliates from (i) publishing general advertisements or making other general postings via other media or search firms, employment agencies or similar entities of employment opportunities or listings, so long as such advertisement, posting or listings were not specifically targeted to the employees of the Company, or (ii) (A) soliciting or hiring any employee of the Company whose employment was terminated by the Company or (B) soliciting or hiring any employee of the Company who is not a Key Personnel whose employment was terminated by the employee at least ninety (90) days prior to the commencement of any employment discussions with Seller or its Affiliates; and
(iii) for a period of three (3) years, directly or indirectly, ownown any interest in, manage, operatecontrol, control or participate in (whether as an officer, director, employee, partner, member, agent, representative or otherwise), consult with, or in any other manner engage in the ownershipBusiness in the Restricted Territory (any of the foregoing, managementa “Restricted Activity”); provided, operation that nothing herein shall prohibit Seller or control any of its Affiliates from:
(A) being a passive owner of not more than five percent (5%) of the outstanding shares of any businessclass of securities of a Person that, whether directly or indirectly, engages in corporatea Restricted Activity, proprietorship so long as none of such Persons has any active participation in the business of such Person;
(B) providing any services for Buyer or partnership form any of its Affiliates (including the Company), including pursuant to the Transition Services Agreement;
(C) acquiring and, after such acquisition, owning and actively engaging in, any business that has a subsidiary, division, group, franchise or otherwisesegment (“Competing Unit”) that is engaged in any Restricted Activity if Seller or its applicable Affiliate divests, or enters into a definitive agreement to divest, the Competing Unit within twelve (12) months after such acquisition is consummated, and completes any such divestiture no later than fifteen (15) months after such acquisition is consummated;
(D) acquiring and, after such acquisition, owning and actively engaging in, any business that has a Competing Unit if the Restricted Activity of the aggregate revenue of all Competing Units acquired pursuant to this subsection (D) generated less than $[***] of net revenues in the fiscal year prior to acquisition and does not generate more than $[***] of net revenues in any fiscal year thereafter; or
(E) selling products (other than products provided by the Business on the Closing Date) to, providing services (other than services provided by the Business on the Closing Date) to, soliciting, or receiving products or services from, or otherwise engaging in, any commercial activities (other than the Business as conducted on the Closing Date) with a Person engaged in the Business Restricted Activity, or that otherwise competes with any client, supplier, partner, licensor or licensee of a Person engaged in the Business (a “Restricted Business”). The parties hereto specifically acknowledge and agree that the remedy at law for any breach of the foregoing will be inadequate and that Newco, in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoeverActivity.
(b) For a period from the Closing Date avoidance of doubt, Section 6.14 shall not apply to the fifth (5th) anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall: (i) cause, solicit, induce or encourage any Employees of the Company to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Company and bind any Person that becomes a client has been divested by Mount Olympus Holdings, Inc. or customer one of the Business its Affiliates to an unrelated third party after the Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipdivestiture.
(c) The covenants From and undertakings contained in this Section 6.7 relate to matters which are of a specialafter the Closing, unique Seller shall, and extraordinary character shall cause its Affiliates to, hold, and a violation of any of the terms of this Section 6.7 will cause irreparable injury to Newco, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law or in equity.
(d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain cause its representatives and their respective Affiliates to hold, in confidence, any and all Company Confidential Information, except to the agreement extent that such information (i) is or becomes generally available to the public other than as a result of a disclosure, in violation of this Agreement, by Seller or its representatives, (ii) is or becomes available to Seller on a non-confidential basis from a source that Seller does not have reason to believe to be bound by an obligation or duty of confidentiality or another legal, fiduciary or contractual obligation of confidentiality or secrecy with respect to such information, or (iii) is independently developed by Seller or its representatives after the Subsidiaries Closing without use of or reference to any of the Company Confidential Information. Seller may disclose Company Confidential Information to the extent required by applicable Law; provided, that to the extent legally permissible and reasonably practicable, Seller shall notify Buyer of its intention to make such disclosure and provide a list of the Company Confidential Information that Seller intends to disclose prior to making such disclosure. Seller agrees to reasonably cooperate with any attempt by Buyer, at Buyer’s sole cost and expense, to seek an appropriate protective order or other remedy with respect to required Seller disclosure of Company Confidential Information. In the event that such a protective order or other remedy is not obtained, Seller (x) will furnish only that portion of the Company Confidential Information that in the opinion of Seller’s legal counsel (including in-house legal counsel) is required by applicable Law to be disclosed and (y) will use its commercially reasonable efforts, at Buyer’s sole cost and expense, to obtain an Order or other reliable assurance that confidential treatment will be accorded to such of the disclosed information that Buyer so designates. Notwithstanding the foregoing, nothing in this Agreement shall prevent Seller or its Affiliate from disclosing the commercial terms and conditions of the transactions contemplated by this Agreement or the financial results of the Company during the period the Company was owned by Seller to lenders to Seller or its Affiliates to the extent required by the current terms and conditions of the debt agreements between Seller or its Affiliates and such lenders, or as required by the customary terms and conditions of any refinancing thereof.
(d) Each Party acknowledges and agrees that in the event of a breach by such Party or its Affiliates of any of the provisions of this Section 6.7 Section 6.14, monetary damages will not constitute a sufficient remedy. Consequently, in form the event of any such breach, the non-breaching Party may, in addition to other rights and content reasonably satisfactory remedies existing in its favor, apply to Newcoany court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any violations of the provisions of this Section 6.14, in each case without the requirement of posting a bond or proving actual damages.
(e) If the final judgment of a court of competent jurisdiction declares that any term or provision of this Section 6.14 is invalid or unenforceable, the Parties agree that it is their intention that the court making the determination of invalidity or unenforceability will reduce the scope, duration or area of the term or provision, delete specific words or phrases or replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (HMS Holdings Corp)
Non-Competition; Non-Solicitation; Confidentiality. (a) For a period from the Closing Date until the fifth (5th) third anniversary of the Closing Date, neither the Company nor any Shareholder shall not, and shall cause each of its Subsidiaries shallAffiliates not to, directly or indirectly, ownown any interest in, manage, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, engaged in the Business manufacture, sale, rental, distribution or that otherwise competes with marketing of any Competing Products in the Business Territory or the provision of a Competing Service in the Territory (each, a “Restricted Business”); provided, however, that the restrictions contained in this Section 6.9(a) shall not restrict (i) the acquisition by the Shareholder and its Affiliates, directly or indirectly, of less than five percent (5%) in the aggregate of any class or series of the outstanding capital stock or other equity or economic interest of any publicly-traded entity engaged in a Restricted Business or (ii) the acquisition and operation by the Shareholder and its Affiliates of businesses engaged in a Restricted Business so long as (x) the revenues from such Restricted Business constitute less than twenty percent (20%) of the total revenues of any business acquired by the Shareholder and its Affiliates (measured for the four calendar quarters before the execution of the purchase agreement) and (y) the Shareholder and its Affiliates divest such Restricted Business within twelve (12) months of the closing of the acquisition. The parties hereto specifically acknowledge Notwithstanding the foregoing, and for the avoidance of doubt, the Parties hereby agree that to the remedy at law for any breach extent Shareholder or its Affiliates, as applicable, engages in the activities set forth on Schedule 6.9(a), it shall not be deemed a violation of the foregoing will be inadequate and that Newco, in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoeverthis Section 6.9(a).
(b) For a period from From the Closing Date to date of this Agreement until the fifth (5th) anniversary of Closing, the Closing DateShareholder shall not, neither the Company nor any and shall cause each of its Subsidiaries shall: (i) Affiliates and each of their respective Representatives not to, directly or indirectly, cause, solicit, induce or encourage any Employees to discontinue such Employee’s current employment with the Company or its Subsidiaries, or transfer, hire, employ or otherwise engage any such individual outside the Company or its Subsidiaries.
(c) From the Closing until the third anniversary of the Closing Date, the Shareholder shall not, and shall cause each of its Affiliates and each of their respective Representatives not to, directly or indirectly, solicit or encourage any Employees to discontinue employment by the Company to leave such employment or its Subsidiaries or hire, employ or otherwise engage any such individual; , it being understood that this Section 6.9(c) shall not restrict the Shareholder or its Affiliates from hiring individuals who (i) respond to notices of general solicitation of employment placed by the Shareholder or its Affiliates or (ii) causeon his or her own initiative without any solicitation by the Shareholder or its Affiliates, induce contact the Shareholder or its Affiliates, provided, however, that individuals to be hired pursuant to (ii) shall have not been employees of the Company or its Subsidiaries for at least ninety (90) days, or shall have been terminated by the Company or its Subsidiaries without cause prior to contacting the Shareholder or its Affiliates.
(d) From the Closing until the third anniversary of the Closing Date, the Purchaser shall not, and shall cause each of its Affiliates (including the Company and its Subsidiaries) and each of their respective Representatives not to, directly or indirectly, solicit or encourage any material actual employee of Shareholder or prospective clienta Subsidiary of Shareholder to discontinue employment by the Shareholder or its Subsidiaries or hire, customeremploy or otherwise engage any such individual, supplier it being understood that this Section 6.9(d) shall not restrict the Purchaser or licensor its Affiliates from hiring individuals who (i) respond to notices of general solicitation of employment placed by the Purchaser or its Affiliates or (ii) on his or her own initiative without any solicitation by the Shareholder or its Affiliates, contact the Purchaser or its Affiliates, provided, however, that individuals to be hired pursuant to (ii) shall have not been employees of the Business Shareholder or its Subsidiaries for at least ninety (including any existing 90) days, or former customer of shall have been terminated by the Company and any Person that becomes a client Shareholder or customer of its Subsidiaries without cause prior to contacting the Business after the Closing) Purchaser or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipits Affiliates.
(ce) From and after the date hereof, the Shareholder shall not, and shall cause each of its Affiliates and each of their respective Representatives not to, directly or indirectly, disclose, reveal, divulge or communicate to any Person, other than the Purchaser and its Representatives, or use or otherwise exploit for their own benefit or for the benefit of anyone other than the Purchaser and its Representatives, any Confidential Information. The Shareholder, its Affiliates and their respective Representatives shall not have any obligation to keep confidential any Confidential Information if and to the extent disclosure thereof is, in the reasonable opinion of the Shareholder’s counsel, required by Law; provided, however, that, prior to any disclosure required by applicable Law, the Shareholder shall have, to the extent permitted by Law, provided the Purchaser with prompt written notice of such requirement before making any disclosure so that the Purchaser may waive compliance with the provisions of this Section 6.9(e) or seek an appropriate protective order, and the Shareholder and the Company shall reasonably cooperate with the Purchaser in connection with obtaining such protective order.
(f) The covenants and undertakings contained in this Section 6.7 6.9 relate to matters which are of a special, unique and extraordinary character character, and a violation of any of the terms of this Section 6.7 6.9 will cause irreparable injury to Newcothe Purchaser or Shareholder, as applicable, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 6.7 6.9 will be inadequate. Therefore, Newco the Purchaser or Shareholder, as applicable, will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.76.9 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 6.7 6.9 are cumulative and in addition to any other rights and remedies which Newco the Purchaser or Shareholder, as applicable, may have hereunder or at law or in equity.
(dg) The parties hereto agree that, if If any court of competent jurisdiction in a final final, nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 6.9 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy policy, may be enforced against the applicable partyShareholder and its Affiliates or the Purchaser and its Affiliates, as applicable.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement of the Subsidiaries of the Company to the provisions of this Section 6.7 in form and content reasonably satisfactory to Newco.
Appears in 1 contract
Samples: Stock Purchase Agreement (Compressco Partners, L.P.)
Non-Competition; Non-Solicitation; Confidentiality. (a) For a period In consideration of the benefits of this Agreement to Sellers, and in order to induce Purchaser to enter into this Agreement, Sellers hereby covenant and agree as follows:
7.4.1 from and after the Closing Date and until the fifth (5th) third anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shallSellers and their Affiliates shall not, directly or indirectly, as a partner, stockholder, proprietor, consultant, joint venturer, investor or in any other capacity:
(a) engage in, or own, manage, operateoperate or control, control or participate in the ownership, management, operation or control of, any business or entity anywhere in the United States that provides services to the U.S. Government in the areas of information technology services and information systems services; provided, however, that nothing herein shall prohibit Sellers and their Affiliates from owning, managing, operating, investing in or controlling a business that sells information technology products (including software it develops), and provides installation, configuration and upgrade services in connection therewith, to the U.S. Government, or owning, in the aggregate, not more than five percent (5%) of any business, whether class of securities of a publicly traded entity in corporate, proprietorship or partnership form or otherwise, engaged in the Business or that otherwise competes with the Business (a “Restricted Business”). The parties hereto specifically acknowledge and agree that the remedy at law for any breach of the foregoing will be inadequate and that Newcolines of business so long as neither Sellers nor any of its Affiliates participates in any way in the management, in addition to any operation or control of such entity or holding the Notes or other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity securities of proving actual damage or posting any bond whatsoever.Purchaser;
(b) For a hire or solicit to perform services (as an employee, consultant or otherwise) any Persons who are, or within the six (6) month period from the Closing Date immediately preceding Sellers' or such Affiliates action were, employees of either SIGNAL Company or take any actions which are intended to the fifth (5th) anniversary persuade any employee of the Closing DateSIGNAL Companies to terminate his or her association with such SIGNAL Company;
(c) solicit any customer of either SIGNAL Company to purchase products or services which could be supplied by a SIGNAL Company; and
(d) from and after the Closing, neither Sellers and their Affiliates shall keep confidential and not disclose to any other Person or use for their own benefit or the benefit of any other Person, any information regarding either SIGNAL Company nor any and the material terms of its Subsidiaries shallthis Agreement (including the Purchase Price). The obligation of Sellers and their Affiliates under this subsection (d) shall not apply to information which: (i) cause, solicit, induce is or encourage any Employees becomes generally available to the public without breach of the Company to leave such employment or hire, employ or otherwise engage any such individualcommitment provided for in this subsection (d); or (ii) causeis required to be disclosed by Applicable Law or by a court or tribunal or Governmental Authority; provided, induce or encourage however, that in any material actual or prospective clientsuch case, customerSellers shall notify Purchaser as early as reasonably practicable prior to disclosure to allow Purchaser to take appropriate measures to preserve the confidentiality of such information.
7.4.2 Sellers acknowledge that, supplier or licensor given the nature of the Business (including any existing or former customer business of the Company and any Person that becomes a client or customer of SIGNAL Companies, the Business after the Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship.
(c) The covenants and undertakings contained in this Section 6.7 relate to matters which are of 7.4 constitute a special, unique and extraordinary character and a violation of any material portion of the terms consideration for the Purchase Price, contain reasonable limitations as to time, geographical area and scope of activity to be restrained, and do not impose a greater restraint than is necessary to protect and preserve for the benefit of Purchaser the goodwill of the SIGNAL Companies and to protect the legitimate business interests of Purchaser. If, however, any provision of this Section 6.7 will cause irreparable injury to Newco, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an injunction, restraining order or other equitable relief from 7.4 is determined by any court of competent jurisdiction to be unenforceable by reason of its extending for too long a period of time or over too large a geographic area or by reason of its being too extensive in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder respect or at law or in equity.
(d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or for any other relevant feature reason it will be interpreted to extend only over the longest period of this Section 6.7 is unreasonabletime for which it may be enforceable and/or over the largest geographical area as to which it may be enforceable and/or to the maximum extent in all other aspects as to which it may be enforceable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is all as determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement in such action. Sellers agree that Purchaser's remedies at law for any Breach or threat of the Subsidiaries Breach by Sellers of the Company to the provisions of this Section 6.7 in form 7.4 will be inadequate, and content reasonably satisfactory that Purchaser shall be entitled to Newcoan injunction or injunctions, without the necessity for the posting of a bond or other collateral security, to eliminate and prevent Breaches of the provisions of this Section 7.4 and to enforce specifically the terms and provisions hereof.
Appears in 1 contract
Non-Competition; Non-Solicitation; Confidentiality. Each of Seller and Maeizumi hereby covenants and agrees:
(a) For that for a period of six (6) years from the Closing Date until the fifth (5th) anniversary of the Closing DateClosing, neither the Company Seller, Maeizumi, nor any of its Subsidiaries shallcompany controlling, controlled by, or under common control with Seller or Maeizumi, will, directly or indirectly, owneither alone, manageor in partnership, operateor in conjunction with person, control company or participate entity as principal, agent, shareholder, or joint venturer: (i) conduct business which is similar to the Business; (ii) engage in the ownershipsale at products and/or services which similar to the products or services sold and/or provided by Seller in the conduct of the Business to any person, management, operation company or control entity which in the two (2) year period immediately preceding the Closing was a customer of any business, whether in corporate, proprietorship or partnership form or otherwise, engaged Seller in the Business or that otherwise competes with was a competitor of any such customer; (iii) except for appropriate notification of the sale of the Assets, affirmatively interfere with, disrupt, or attempt to disrupt, in any manner, the relationship, contractual or otherwise, between Purchaser and any person who is or was a customer or supplier of Seller for the Business at any time during the two (a “Restricted 2) year period immediately prior to the Closing for products and/or services of any type or quality provided to such customer or for supplies acquired from such supplier by Seller for the Business”). The parties hereto specifically acknowledge and agree that the remedy at law ; or (iv) solicit for employment or other working relationship any breach of the foregoing will be inadequate and that Newco, in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoever.employees hired by Purchaser; and
(b) For a period from to hold in confidence all Confidential and Proprietary Information, and that each of them will not disclose or use or permit the Closing Date to the fifth (5th) anniversary disclosure or use of the Closing DateConfidential and Proprietary Information at any time, neither the Company nor except as may be required as a matter of law, or at any of its Subsidiaries shall: (i) cause, solicit, induce judicial or encourage any Employees of the Company to leave such employment or hire, employ or otherwise engage any such individualgovernmental proceeding; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship.and
(c) The covenants that (i) the time duration and undertakings geographic and other scope limitations contained in this Section 6.7 relate 12 are reasonable and are required for the reasonable protection of Purchaser's investment in the Assets and the Business and constitute an integral part of the consideration given by Seller and Maeizumi in exchange for the Purchase Price; provided, however, the parties hereto agree that a court of competent jurisdiction or other trier of fact may modify and enforce the covenants contained in this Section 12 to matters which are the extent it deems reasonable under the circumstances at that time and such modification shall be binding on the parties hereto and (ii) any breach by any of a special, unique and extraordinary character and a violation them of any of the terms of this Section 6.7 will 12 may cause substantial and irreparable injury to Newco, the amount of Purchaser in amounts which will may be difficult or impossible to estimate or determine ascertain, and which cannot be adequately compensated. Accordinglycovenants and agrees that in the event of such breach any of the terms of this Section 12, Purchaser shall have, in addition to all other remedies available in the remedy at law for any event of a breach of this Section 6.7 will be inadequate. ThereforeAgreement, Newco will be entitled the right to an injunction, restraining order injunctive or other equitable relief from any court relief, without the need of competent jurisdiction posting bond or other security, as well as an award of attorneys' fees and costs incurred as a result of such action, and in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law or in equity.
(d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement violation of the Subsidiaries of the Company to the provisions of this Section 6.7 in form and content reasonably satisfactory to Newco12 by either Seller or Maeizumi, the running of the time period of Non-Competition/ Non-Solicitation shall be tolled during the period of the continuance of any actual breach or violation.
Appears in 1 contract
Samples: Asset Purchase Agreement (Universal Electronics Inc)
Non-Competition; Non-Solicitation; Confidentiality. (a) For a period of five (5) years from the Closing Date until the fifth (5th) anniversary of and after the Closing Date, neither Seller shall not, and shall cause Seller’s Affiliates not to, without the Company nor any express written consent of its Subsidiaries shallPurchaser, directly or indirectly, own, establish, manage, engage in, operate, control control, work for, consult with, render services for, do business with, provide financing for, maintain any interest in (proprietary, financial or otherwise), or participate in the ownership, establishment, management, operation operation, or control of, any business (other than Purchaser or any of any businessPurchaser’s Affiliates, including the Company), whether in corporate, proprietorship or partnership form or otherwise, engaged in in, or preparing to engage in, the Business or that otherwise competes with provision of the Business (a “Restricted Business”). The parties hereto specifically acknowledge and agree ) anywhere in the world; provided, that the remedy at law for any breach restrictions contained in this Section 6.1(a) shall not restrict (i) Seller’s compliance with the terms of the foregoing will License Agreement, subject to the terms thereof, or (ii) Seller from developing, marketing and/or selling products for video editing and streaming products that are not materially similar to the current Restricted Business or the ManyCam communications products, or (iii) Seller from directly or indirectly acquiring or holding not more than two percent (2%) in the aggregate of securities in a Person directly or indirectly carrying on, engaging in, participating in or having a financial or other interest in a Restricted Business, which shares are listed on a recognized national securities exchange, and which shares confer in the aggregate not more than two percent (2%) of the votes which would normally be inadequate and that Newco, in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without cast at a general meeting of the necessity securityholders of proving actual damage or posting any bond whatsoeversuch Person.
(b) For a period of five (5) years from the Closing Date to the fifth (5th) anniversary of and after the Closing Date, neither the Company nor any of its Subsidiaries shall: Seller shall not, and shall cause Seller’s Affiliates not to, directly or indirectly (i) (A) cause, solicit, induce or encourage any Employees employees or contractors of the Company Purchaser or any of its Affiliates, or any individual who was employed by or engaged with Purchaser or any of its Affiliates at any time within 12 months before such solicitation, inducement or encouragement to leave such employment or engagement or (B) hire, employ or otherwise engage any such individualindividual (it being understood that this should not apply to any person who responds to a general media advertisement not specifically directed toward employees of Purchaser or any of its Affiliates); or (ii) cause, solicit, induce or encourage any material former, actual or prospective client, customer (including, but not limited to, any customer included in the Customer Database), supplier, or licensor of the Company, the Business or Purchaser or any of its Affiliates (including any existing customer of the Company, the Business or Purchaser or any of its Affiliates and any Person that was a client, customer, supplier or licensor of at any time within the Business six (including any existing 6) months before such solicitation, inducement or former customer of the Company and any Person that becomes a client or customer of the Business after the Closingencouragement) or any other Person who has a material business relationship with the BusinessCompany, the Business or Purchaser or any of its Affiliates to do business with a Restricted Business or terminate or materially modify any such actual or prospective relationshiprelationship with the Company, the Business or Purchaser or any of its Affiliates. Notwithstanding anything herein to the contrary, the restrictions of this Section 6.1(b) shall not (x) apply to actions taken at the direction of Purchaser or the Company following Closing on behalf of the Company or Purchaser pursuant to the Transition Services Agreement, or (y) following the termination or expiration of the Transition Services Agreement, in any way restrict a Party from hiring, employing or engaging any employee or independent contractor engaged pursuant to the Transition Services Agreement so long as such Party otherwise complies with the other obligations set forth in this Section 6.1.
(c) From and after the Closing Date, Seller shall not and shall cause Seller’s Affiliates not to, directly or indirectly, disclose, reveal, divulge, or communicate to any Person other than authorized officers, directors and employees of Purchaser or the Company, or use or otherwise exploit for its own benefit or for the benefit of anyone other than Purchaser or the Company, any Confidential Information (other than as required pursuant to the terms of the Licensing Agreement, subject to the limitations set forth therein). Seller shall not have any obligation to keep confidential (or cause Seller’s Affiliates to keep confidential) any Confidential Information if and to the extent disclosure thereof is specifically required by applicable Law; provided, that in the event disclosure is required by applicable Law, Seller shall, to the extent reasonably possible, provide Purchaser with prompt notice of such requirement prior to making any disclosure so that Purchaser may seek an appropriate protective Order and cooperate with Purchaser concerning any such protective Order sought.
(d) From and after the Closing Date, Seller shall not and shall cause Seller’s Affiliates not to, directly or indirectly, disparage Purchaser, the Company or any of their respective Affiliates in any way that adversely and substantially impacts the goodwill, reputation or business relationships of Purchaser, the Company or any of their respective Affiliates with the public generally, or with any of their customers, suppliers, independent contractors, or employees.
(e) The covenants and undertakings contained in this Section 6.7 6.1 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 6.7 6.1 will cause irreparable injury to NewcoPurchaser, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the Parties specifically acknowledge and agree that the remedy at law Law for any breach of this Section 6.7 6.1 will be inadequate. Therefore, Newco the Parties specifically acknowledge and agree that Purchaser will be entitled to an injunction, restraining order Order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.76.1 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 6.7 6.1 are cumulative and in addition to any other rights and remedies which Newco Purchaser may have hereunder or at law Law or in equity.
(df) No claim against Purchaser, the Company or any of their Affiliates by Seller under this Agreement or otherwise shall constitute a defense to the enforcement by Purchaser of the covenants and obligations in this Section 6.1. In the event of any actual or threatened violation of the covenants and obligations under this Section 6.1 by Seller, Purchaser, the Company or any of their Affiliates shall be entitled to recover from Seller its reasonable attorneys’ fees and all costs and expenses associated with the enforcement of any provision of this Section 6.1 in addition to any other available legal or equitable remedies. If any court of competent jurisdiction finds that Seller has breached any of its covenants or obligations under this Section 6.1, the time period during which such covenants and obligations are effective shall be suspended and shall not run in favor of Seller from the date of such breach until the date when such breach is cured or remedied.
(g) The parties hereto Parties agree that, if any court of competent jurisdiction in a final nonappealable non-appealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 6.1 is unreasonable, arbitrary arbitrary, unenforceable, or against public policy, then a lesser time periodperiod of time, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary arbitrary, enforceable, and not against public policy may shall be enforced against the applicable partyParty. Seller acknowledges that the covenants and obligations in this Section 6.1 have been a material inducement for Purchaser to consummate this Agreement. Accordingly, Seller irrevocably waives any right existing as of the Closing Date or arising in the future to: (i) file any declaratory judgment or similar action seeking to declare unenforceable any covenant or obligations under this Section 6.1 or challenge the validity of such covenants or obligations; (ii) otherwise contest the enforceability of any such covenants or obligations as being unreasonable or unenforceable; or (iii) assert any defenses to any action or effort by Purchaser to enforce any such covenants or obligations based on their reasonableness.
(eh) The Company shall use its commercially reasonable efforts Parties acknowledge that the restrictive covenants contained in Section 6.1 are integral to obtain this Agreement and have been granted to maintain or preserve the agreement fair market value of the Subsidiaries Purchased Securities. The Parties confirm that no portion of the Company Purchase Price is either paid or allocated to a “restrictive covenant” as that term is defined for the provisions purposes of this Section 6.7 in form and content reasonably satisfactory to Newcosection 56.4 of the Tax Act (or for the equivalent provision of any applicable provincial Law).
Appears in 1 contract
Non-Competition; Non-Solicitation; Confidentiality. (a) For a period from the Closing Date date hereof until the fifth fourth (5th4th) anniversary of the Closing Date, neither the Company nor Seller shall not and shall cause its Subsidiaries and successors (including successors of Seller or any of its Subsidiaries shallor any assignee or purchaser of the Atlas Product Line or any material portion thereof) not to engage in a Restricted Business; provided, however, that the restrictions contained in this Section 5.1(a) shall not restrict the acquisition by Seller, directly or indirectly, own, manage, operate, control or participate in of less than 2% of the ownership, management, operation or control outstanding capital stock of any business, whether in corporate, proprietorship or partnership form or otherwise, publicly traded company engaged in the Business or that otherwise competes with the Business (a “Restricted Business”). The parties hereto specifically acknowledge and agree that the remedy at law for any breach of the foregoing will be inadequate and that Newcoeach Purchaser, in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoever.
(b) For a period from the Closing Date date hereof to the fifth second (5th2nd) anniversary of the Closing Date, neither the Company nor Seller shall not and shall cause its Subsidiaries and, with respect to clause (i) below, successors (including successors of Seller or any of its Subsidiaries shallof any Qualifying Assets retained by Seller and its Subsidiaries after the Closing Date) and their respective employees not to: (i) cause, solicit, induce or encourage any Transferred Employees of the Company to leave such employment with the Sale Business (other than through general advertising or other general solicitation not targeted to the Transferred Employees) or hire, employ or otherwise engage any such individual; provided, however, in respect of successors, those Transferred Employees in respect of whom the restrictions set forth in this Section 5.1(b) apply shall be limited to those listed on Schedule 5.1(b); or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Sale Business (including any existing or former customer of the Company and any Person that becomes a client Seller or customer its Subsidiaries of the Business after the ClosingSale Business) or any other Person who has a material business relationship with the Sale Business, to terminate or modify any such actual or prospective relationship; provided, however, the restrictions set forth in connection with clause (ii) shall apply to those entities listed in Schedule 1.1(c) to the extent such entities are successors to assets, other than in the ordinary course of business consistent with past practices, of the Seller and its Subsidiaries.
(c) The covenants For a period from the date hereof until the fourth (4th) anniversary of the Closing Date, Seller shall not and undertakings contained in this Section 6.7 relate to matters which are shall cause its Subsidiaries, Affiliates and successors (including successors of a special, unique and extraordinary character and a violation Seller or any of its Subsidiaries of any businesses retained by Seller and its Subsidiaries after the Closing Date) and their respective officers and directors in each case to whom such information is disclosed not to, directly or indirectly, disclose, reveal, divulge or communicate to any Person other than authorized officers, directors and employees of such Purchaser or use or otherwise exploit for its own benefit or for the benefit of anyone other than such Purchaser, any Confidential Information (as defined below). Notwithstanding the foregoing, if Seller or any of its Subsidiaries receives a request or is required (by deposition, oral questions, interrogatory, request for documents, subpoena, governmental investigative demand or other legal or regulatory process) to disclose all or any part of the Confidential Information, Seller shall (i) promptly notify each Purchaser of the existence, terms and circumstances surrounding such a request, (ii) consult with each Purchaser on the advisability of this Section 6.7 will cause irreparable injury taking legally available steps to Newcoresist or narrow such request, the amount of which will be impossible and (iii) cooperate with such Purchaser’s efforts to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an injunction, restraining seek a protective order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.7appropriate remedy. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law or in equity.
(d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation If such protective order or other relevant feature which remedy is determined not obtained or if such Purchaser waives compliance with the provisions hereof in writing, Seller may disclose only that portion of Confidential Information that it is advised by such court counsel is required, by Applicable Law, to be reasonabledisclosed, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement of the Subsidiaries of the Company to the provisions of this Section 6.7 in form and content reasonably satisfactory to Newco.cooperate with such Purchaser’s efforts
Appears in 1 contract
Samples: Asset Purchase Agreement (Universal Electronics Inc)
Non-Competition; Non-Solicitation; Confidentiality. (a) For Executive represents that acceptance of employment under this Agreement and performance under this Agreement are not in violation of any restrictions or covenants under the terms of any other agreements to which Executive is a period from party.
(b) Executive acknowledges and recognizes the Closing Date until the fifth (5th) anniversary highly competitive nature of the Closing Datebusiness of Company and accordingly agrees that, neither in consideration of this Agreement, the rights conferred hereunder, and any payment hereunder, Executive shall not engage, either directly or indirectly, as a principal for Executive’s own account or jointly with others, or as a stockholder in any corporation or joint stock association, or as a partner or member of a general or limited liability entity, or as an employee, officer, director, agent, consultant or in any other advisory capacity, (i) while employed by Company nor and for the 18-month period following the termination of Executive’s employment for any reason (“Non-Compete Term”), in any business (other than Company, Metaldyne or their respective subsidiaries) which designs, develops, manufactures, distributes, sells or markets the type of products or services sold, distributed or provided by Company, Metaldyne or any of its Subsidiaries shalltheir respective subsidiaries during the two (2) year period prior to the date of termination of Executive’s employment (the “Business”) or (ii) while employed by Company and for the six-month period following the termination of Executive’s employment for any reason, in any private equity firm (the activities described in clauses (b)(i) and (ii), collectively, “Competitive Activities”), it being understood that the activities and business of a private equity firm shall be deemed to include, without limitation, researching, analyzing and evaluating portfolio companies (including any such companies that Company, Metaldyne or any of their respective subsidiaries have previously evaluated for possible investment by or on behalf of Company, Metaldyne or any of their respective subsidiaries) with the intent to acquire, make an investment in and/or dispose of such companies or assets thereof for the benefit of Executive or any other person. Nothing herein shall prevent Executive from owning, directly or indirectly, own, manage, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, engaged in the Business or that otherwise competes with the Business not more than five percent (a “Restricted Business”). The parties hereto specifically acknowledge and agree that the remedy at law for any breach 5%) of the foregoing will be inadequate and that Newcooutstanding shares of, in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoever.
(b) For a period from the Closing Date to the fifth (5th) anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall: (i) cause, solicit, induce or encourage any Employees of the Company to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) or any other Person who has equity interest in, any entity engaged in Competitive Activities and listed or traded on a material business relationship with the Business, to terminate national securities exchange or modify any such actual or prospective relationshipin an over-the-counter securities market.
(c) The covenants During the Non-Compete Term, Executive shall not (i) directly or indirectly employ, solicit or receive or accept the performance of services by, any active employee of Company, Metaldyne or any of their respective subsidiaries who is employed primarily in connection with the Business, except in connection with general, non-targeted recruitment efforts such as advertisements and undertakings contained job listings, or directly or indirectly induce any employee of Company, Metaldyne or any of their respective subsidiaries to leave Company, Metaldyne or any of their respective subsidiaries, or assist in this Section 6.7 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 6.7 will cause irreparable injury to Newcoforegoing, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law (ii) solicit for any breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction business that is engaged in the event Business any person who is a customer or former customer of Company, Metaldyne or any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition their respective subsidiaries, unless such person shall have ceased to any other rights and remedies which Newco may have hereunder or been such a customer for a period of at law or in equityleast six (6) months.
(d) The parties hereto agree thatExecutive shall not at any time (whether during or after his employment with Company) disclose or use for Executive’s own benefit or purposes or the benefit or purposes of any other person, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time periodfirm, a specified geographical areapartnership, a specified joint venture, association, corporation or other business limitation organization, entity or enterprise other than Company, Metaldyne or any of their respective subsidiaries, any trade secrets, information, data or other relevant feature confidential information of Company, Metaldyne or any of their respective Subsidiaries, including but not limited to information relating to customers, development programs, costs, marketing, trading, investment, sales activities, promotion, credit and financial data, financing methods, plans or the business and affairs of Company, Metaldyne or any of their respective subsidiaries generally, unless required to do so by applicable law or court order, subpoena or decree or otherwise required by law, with reasonable evidence of such determination promptly provided to Company. The preceding sentence of this Section 6.7 paragraph (d) shall not apply to information which is unreasonablenot unique to Company, arbitrary Metaldyne or against any of their respective subsidiaries or which is generally known to the industry or the public policyother than as a result of Executive’s breach of this covenant. Executive agrees that upon termination of employment with Company for any reason, then a lesser Executive will return to Company immediately all memoranda, books, papers, plans, information, letters and other data, and all copies thereof or therefrom, in any way relating to the business of Company, Metaldyne or any of their respective subsidiaries, except that Executive may retain personal notes, notebooks and diaries. Executive further agrees that Executive will not retain or use for Executive’s account at any time periodany trade names, geographical area, business limitation trademark or other relevant feature which is determined by such court to be reasonableproprietary business designation used or owned in connection with the business of Company, not arbitrary and not against public policy may be enforced against the applicable partyMetaldyne or any of their respective subsidiaries.
(e) The It is expressly understood and agreed that although Executive and Company shall use its commercially reasonable efforts consider the restrictions contained in this Section 11 to obtain be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the agreement of the Subsidiaries of the Company to time or territory or any other restriction contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any tribunal of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
(f) As a condition to the receipt of any benefits described in this Agreement, Executive shall be required to execute an agreement pursuant to which Executive releases any claims he may have against Company, Metaldyne or any of their respective subsidiaries and agrees to the continuing enforceability of the restrictive covenants of this Agreement.
(g) This Section 6.7 in form 11 will survive the termination of the Term of Employment and content reasonably satisfactory to Newcothe termination of this Agreement.
Appears in 1 contract
Non-Competition; Non-Solicitation; Confidentiality. (a) For a period of three (3) years from the Closing Date until the fifth (5th) anniversary of and after the Closing Date, neither the Company nor any of its Subsidiaries shallDesignated Employees shall not, directly or indirectly, own, manage, engage in, operate, control control, work for, consult with, render services for, do business with, maintain any interest in (proprietary, financial or otherwise) or participate in the ownership, management, operation or control of of, any business, whether in corporate, proprietorship or partnership form or otherwise, engaged in the Business developing software that enables voice or video internet protocol communications and/or services or that otherwise competes with the Business Company or any of the Subsidiaries (a “Restricted Business”). The parties hereto specifically acknowledge and agree ; provided, however, that the remedy at law for any breach restrictions contained in this Section 6.10(a) shall not restrict the acquisition by such Designated Employees, directly or indirectly, of less than 5% of the foregoing will be inadequate and that Newco, outstanding capital stock of any company engaged in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or posting any bond whatsoevera Restricted Business.
(b) For a period of three (3) years from the Closing Date to the fifth (5th) anniversary of and after the Closing Date, neither the Company nor any of its Subsidiaries shallDesignated Employees shall not, directly or indirectly: (i) cause, solicit, induce or encourage any Employees employees of the Company or its Subsidiaries to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier supplier, or licensor of the Business Company or any of its Subsidiaries (including any existing or former customer of the Company and any Person that becomes a client or customer of the Business after the Closingits Subsidiaries) or any other Person person who has a material business relationship with the BusinessCompany or any of its Subsidiaries, to terminate or adversely modify any such actual or prospective relationship.
(c) The covenants From and undertakings contained in this Section 6.7 relate to matters which are of a specialafter the Closing Date, unique and extraordinary character and a violation of any each Selling Stockholder shall not and, where applicable, shall cause their officers, directors, members of the terms Management Board, members of the Supervisory Board, employees and Affiliates not to, directly or indirectly, disclose, reveal, divulge or communicate to any person other than authorized officers, directors, members of the Management Board, members of the Supervisory Board and employees of the Acquiror or use or otherwise exploit for its own benefit or for the benefit of anyone other than the Acquiror, any Confidential Information (as defined below). Each Selling Stockholder shall not have any obligation to keep confidential (or cause its officers, directors, members of the Management Board, members of the Supervisory Board or Affiliates to keep confidential) any Confidential Information if and to the extent disclosure thereof is specifically required by applicable law; provided, however, that in the event disclosure is required by applicable law, the Selling Stockholder shall, to the extent reasonably possible, provide the Acquiror with prompt notice of such requirement prior to making any disclosure so that the Acquiror may seek an appropriate protective order. For purposes of this Section 6.7 will cause irreparable injury 6.10(c), “Confidential Information” means any information with respect to Newcothe Company or any of its Subsidiaries, including methods of operation, customer lists, products, prices, fees, costs, technology, inventions, trade secrets, know-how, software, marketing methods, plans, personnel, suppliers, competitors, markets or other specialized information or proprietary matters. “Confidential Information” does not include, and there shall be no obligation hereunder with respect to, information that (i) is generally available to the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, public on the remedy at law for any breach date of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an injunction, restraining order Agreement or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law or in equity.
(dii) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement of the Subsidiaries of the Company becomes generally available to the provisions public other than as a result of this Section 6.7 in form and content reasonably satisfactory to Newcoa disclosure not otherwise permissible hereunder.
Appears in 1 contract
Non-Competition; Non-Solicitation; Confidentiality. (a) For a period from Until the Closing Date until the fifth (5th) first anniversary of the Closing Date, neither the Company nor any Seller and each Individual Owner will not, and Seller will cause each of its Subsidiaries shallAffiliates (collectively, the “Restricted Persons”) not to, directly or indirectly, own, manage, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, engaged in the Business crude oil, condensate, natural gas liquids and natural gas gathering, transportation, distribution or that otherwise competes with the Business marketing, or water treatment or brine disposal (a “Restricted Business”) within the States of Ohio, Kentucky, Pennsylvania and West Virginia (the “Restricted Area”). The parties hereto specifically acknowledge and agree ; provided, however, that no such Restricted Person will be deemed to be so competing by reason of: (i) ownership, management, operation, control or participation in the ownership, management, operation or control of the Excluded Companies to the extent the business of the Excluded Companies is the business conducted by the companies as of the date of this Agreement, or (ii) the acquisition, directly or indirectly (including by purchase, exchange, joint venture, merger or otherwise) of a Restricted Business so long as the amount of the consideration in that acquisition that is allocated to assets within the Restricted Area is no more than 10% of the aggregate consideration in the overall transaction, or (iii) owning securities in companies listed on the New York Stock Exchange, the American Stock Exchange, or quoted on the National Association of Securities Dealers Automatic Quotation System (NASDAQ) or any other securities exchange in the United States or any other country, provided that the remedy at law for direct and beneficial ownership of any breach class of securities in any of such entities by any such Restricted Person is not more than 10% of the foregoing will be inadequate and that Newcoaggregate number of outstanding shares, in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity units or interests of proving actual damage or posting any bond whatsoeversuch class of securities.
(b) For a period from of one (1) year following the Closing Date Date, neither Seller nor any of its Affiliates nor any Individual Owner will solicit, raid, encourage, entice or induce, directly or indirectly, any Company Employee employed by Buyer or any of its Affiliates, to (i) terminate his or her employment with Buyer or any of its Affiliates, (ii) refrain from extending or renewing the fifth same (5thupon the same or new terms), (iii) refrain from rendering services to or for Buyer or any of its Affiliates, (iv) become employed by or to enter into contractual relations with any persons other than Buyer or any of its Affiliates, or (v) enter into an employment or contractual relationship with a competitor of Buyer or any of its Affiliates; provided that the foregoing shall not prohibit solicitations through advertisements and other customary employment marketing practices which are not targeted to any Company Employees.
(c) Until the first anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall: Seller and each Individual Owner will not, and Seller will cause each other Restricted Person and their respective officers, directors, consultants, employees and advisors not to, directly or indirectly, (i) causedisclose, solicitreveal, induce divulge or encourage communicate to any Employees Person, any Confidential Information (as defined below) other than: (x) to authorized officers, directors, consultants, employees and advisors of Seller and Seller’s Affiliates that have a reasonable need to know and that agree to maintain the Company confidentiality of Confidential Information in accordance with this Agreement and (y) as reasonably required, to leave such employment exercise any rights or hire, employ obligations or otherwise engage in connection with any such individual; dispute under this Agreement or (ii) causeuse or otherwise exploit any Confidential Information for its own benefit or for the benefit of anyone other than Buyer. The Restricted Persons will not have any obligation to keep confidential any Confidential Information if and to the extent disclosure thereof is specifically required by Law; provided, induce or encourage any material actual or prospective clienthowever, customerthat in the event disclosure is required by applicable Law, supplier or licensor of the Business (including any existing or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) or any other Person who has a material business relationship with the BusinessSeller shall, to terminate or modify the extent reasonably possible, provide Buyer with prompt notice of such requirement prior to making any such actual or prospective relationship.
(c) The covenants and undertakings contained in disclosure so that Buyer may seek an appropriate protective order. For purposes of this Section 6.7 relate 7.15(c), “Confidential Information” shall mean any confidential information that applies solely to matters which are of a special, unique and extraordinary character and a violation of any Company or any of the terms of this Section 6.7 will cause irreparable injury Assets, including, to Newcothe extent applicable, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordinglycustomers, the remedy at law for any breach of this Section 6.7 will be inadequate. Thereforecustomer lists, Newco will be entitled to an injunctionproducts, restraining order prices, fees, costs, trade secrets, plans, suppliers, competitors, markets or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.7specialized information or proprietary matters. The rights Confidential Information does not include, and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have there shall be no obligation hereunder or at law or in equity.
with respect to, information that (di) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement of the Subsidiaries of the Company generally available to the provisions public on the Closing Date or (ii) becomes generally available to the public or Seller or a Restricted Party other than as a result of a disclosure not otherwise permissible under this Section 6.7 in form and content reasonably satisfactory to NewcoAgreement.
Appears in 1 contract
Samples: Stock Purchase and Sale Agreement (Crosstex Energy Lp)
Non-Competition; Non-Solicitation; Confidentiality. Coherent Corp. PSU (Sample Financial Performance Condition/Share-Settled)
(a) For While the Recipient is employed by the Company (including its Subsidiaries) and for a period of one (1) year after the Recipient’s Separation from Service for any reason (the Closing Date until “Restricted Period”), the fifth (5th) anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall, Recipient will not directly or indirectly:
(i) engage in any business or enterprise (whether as owner, ownpartner, manageofficer, operatedirector, control or participate in the ownershipemployee, managementconsultant, operation or control of any businessinvestor, whether in corporate, proprietorship or partnership form lender or otherwise, engaged in except as the Business holder of not more than one percent (1%) of the outstanding stock of a publicly-held company), that develops, manufactures, markets or sells any product or service that otherwise competes with any product or service developed, manufactured, marketed or sold or, to the Business (Recipient’s knowledge, planned to be developed, manufactured, marketed or sold, by Coherent or its Subsidiaries while the Recipient was employed by the Company or a “Restricted Business”). The parties hereto specifically acknowledge and agree that Subsidiary, within the remedy at law for United States of America, and/or any breach other country within which Coherent or its Subsidiaries have customers or prospective customers as of the foregoing will be inadequate date of such Separation from Service;
(ii) (A) solicit for the purpose of selling or distributing any products or services that are the same or similar to those developed, manufactured, marketed or sold by Coherent or its Subsidiaries, (1) any customers of Coherent or its Subsidiaries, (2) any prospective customers known by the Recipient to have been solicited by Coherent or its Subsidiaries within the twelve (12) months prior to the Recipient’s Separation from Service, or (3) any distributors, sales agents or other third-parties who sell to or refer potential customers in need of the types of products and services produced, marketed, licensed, sold or provided by Coherent or its Subsidiaries who have become known to the Recipient as a result of his/her employment with the Company (including its Subsidiaries), or (B) induce or attempt to induce any vendor, supplier, licensee or other business relation of Coherent or its Subsidiaries to cease or restrict doing business with Coherent or its Subsidiaries, or in any way interfere with the relationship between any such vendor, supplier, licensee or business relation and Coherent or its Subsidiaries; or
(iii) either alone or in association with others (A) solicit, or permit any organization directly or indirectly controlled by the Recipient to solicit, any employee of Coherent or its Subsidiaries to leave the employ of Coherent or its Subsidiaries, or (B) solicit for employment, hire or engage as an independent contractor, or permit any organization directly or indirectly controlled by the Recipient to solicit for employment, hire or engage as an independent contractor, any person who was employed by Coherent or its Subsidiaries at any time during the term of the Recipient’s employment with the Company or a Subsidiary; provided that Newco, in addition this clause (B) shall not apply to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity individual whose employment with Coherent or its Subsidiaries has been terminated for a period of proving actual damage one (1) year or posting any bond whatsoeverlonger.
(b) For The Recipient acknowledges that certain materials, including information, data, technology and other materials relating to customers, programs, costs, marketing, investment, sales activities, promotion, credit and financial data, manufacturing processes, financing methods, plans or the business and affairs of Coherent and its Subsidiaries constitute proprietary confidential information and trade secrets. Accordingly, the Recipient will not at any time during or after the Recipient’s employment with the Company or a period from Subsidiary disclose or Coherent Corp. PSU (Sample Financial Performance Condition/Share-Settled) use for the Closing Date Recipient’s own benefit or purposes or the benefit or purposes of any other person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise, other than the Company (including its Subsidiaries), any proprietary confidential information or trade secrets; provided that the foregoing shall not apply to information which is not unique to Coherent and its Subsidiaries or which is generally known to the fifth (5th) anniversary industry or the public other than as a result of the Closing DateRecipient’s breach of this covenant. The Recipient agrees that, neither upon the Company nor Recipient’s Separation from Service for any reason, the Recipient will immediately return to Coherent all property of Coherent and its Subsidiaries shall: (i) causeSubsidiaries, solicitincluding all memoranda, induce books, technical and/or lab notebooks, customer product and pricing data, papers, plans, information, letters and other data, and all copies thereof or encourage therefrom, which in any Employees way relate to the business of Coherent and its Subsidiaries, except that the Company to leave such employment Recipient may retain personal items. The Recipient further agrees that the Recipient will not retain or hireuse for the Recipient’s account at any time any trade names, employ trademark or otherwise engage any such individual; other proprietary business designation used or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Company and any Person that becomes a client or customer of the Business after the Closing) or any other Person who has a material business relationship owned in connection with the Business, to terminate or modify any such actual or prospective relationshipbusiness of Coherent and its Subsidiaries.
(c) The Restricted Period will be tolled during and for any period of time during which the Recipient is in violation of the restrictive covenants and undertakings contained in this Section 6.7 relate to matters which are of a special, unique 13 and extraordinary character and a violation of any of the terms of this Section 6.7 will cause irreparable injury to Newco, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach period of this Section 6.7 will time which may be inadequate. Therefore, Newco will be entitled necessary to secure an order of court or injunction, restraining order either preliminary or other equitable relief from any court of competent jurisdiction permanent, to enforce such covenants, such that the cumulative time period during which the Recipient is in compliance with the event of any breach of this restrictive covenants contained in Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition to any other rights and remedies which Newco may have hereunder or at law or in equity13 will not exceed the one (1)-year period set forth above.
(d) The parties hereto agree thatNothing herein is intended to or shall limit, prevent, impede or interfere with the Recipient’s non-waivable right, without prior notice to the Company, to provide information to the government, participate in investigations, testify in proceedings regarding the Company’s past or future conduct, or engage in any activities protected under whistleblower statutes, or to receive and fully retain a monetary award from a government-administered whistleblower award program for providing information directly to a government agency. Further, the Recipient understands that pursuant to the Defend Trade Secrets Act of 2016, the Recipient shall not be held criminally, or civilly, liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in confidence either directly or indirectly to a Federal, State, or local government official, or an attorney, for the sole purpose of reporting, or investigating, a violation of law. Moreover, the Recipient understands that he or she may disclose trade secrets in a complaint, or other document, filed in a lawsuit, or other proceeding, if any court of competent jurisdiction in such filing is made under seal. Finally, the Recipient understands that if he or she files a final nonappealable judgment determines that lawsuit alleging retaliation by the Company for reporting a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement suspected violation of the Subsidiaries of law, the Company Recipient may disclose the trade secret to the provisions of this Section 6.7 attorney and use the trade secret in form the court proceeding, so long as any document containing the trade secret is filed under seal and content reasonably satisfactory the Recipient does not disclose the trade secret except pursuant to Newco.court order. Coherent Corp. PSU (Sample Financial Performance Condition/Share-Settled)
Appears in 1 contract
Samples: Performance Share Unit Award Agreement (Coherent Corp.)
Non-Competition; Non-Solicitation; Confidentiality. (a) For a period from of ninety days commencing on the Closing Date until date of this agreement, the fifth (5th) anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shallConsultant shall not, directly or indirectly, ownengage or be interested in (as owner, managestockholder, operatepartner, control member, manager, lender, employee, agent, consultant or participate otherwise) any business or entity that engages, anywhere in the ownershipworld, management, operation in any business competitive with any business in which the Company or control any of any business, whether in corporate, proprietorship its subsidiaries is engaged or partnership form or otherwise, engaged in the Business or that otherwise competes with the Business (a “Restricted Business”). The parties hereto specifically acknowledge and agree that the remedy at law for any breach has under active consideration as of the foregoing will be inadequate date of this agreement. However, this section shall not prevent the Consultant from owning as an investment up to 20% of a class of equity securities issued by any corporation whose shares are publicly traded and that Newco, in addition registered under the Securities Exchange Act of 1934 or subject to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity Section 15(d) of proving actual damage or posting any bond whatsoeversuch Act.
(b) For a period from of ninety days commencing on the Closing Date to date of this agreement, the fifth (5th) anniversary Consultant shall not, directly or indirectly, employ or solicit for employment or consulting, on his own behalf or on behalf of any other person or entity, or otherwise encourage the resignation of, any employee of the Closing Date, neither the Company nor or any of its Subsidiaries shall: (i) causesubsidiaries, solicit, induce or encourage except that the Consultant may employ any Employees employee of the Company to leave such Company's corporate headquarters whose employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of is terminated by the Company and any Person that becomes a client or customer of who resigns without encouragement from the Business after the Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipConsultant.
(c) The covenants and undertakings contained Consultant shall not, for a period of five years after the end of the term of this agreement, disclose to anyone, or use in this Section 6.7 relate to matters which are of a special, unique and extraordinary character and a violation of competition with the Company or any of the terms of this Section 6.7 will cause irreparable injury to Newcoits subsidiaries, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 6.7 will be inadequate. Therefore, Newco will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.7. The rights and remedies provided by this Section 6.7 are cumulative and in addition non-public information with respect to any other rights and remedies which Newco may have hereunder confidential or at law secret aspect of the business of the Company or in equityany of its subsidiaries.
(d) The parties hereto agree that, if any court Consultant acknowledges that the remedy at law for breach of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.7 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
(e) The Company shall use its commercially reasonable efforts to obtain the agreement of the Subsidiaries of the Company to the provisions of this Section 6.7 section 3 will be inadequate and that, in form addition to any other remedy the Company may have, it shall be entitled to an injunction restraining any breach or threatened breach, without any bond or other security being required and content reasonably satisfactory without the necessity of showing actual damages. If any court construes the covenant in this section 3 or any part thereof, to Newcobe unenforceable in any respect, the court may reduce the duration or area to the extent necessary so that the provision is enforceable, and the provision, as reduced, shall then be enforceable.
Appears in 1 contract
