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Common use of Non-Competition; Non-Solicitation Clause in Contracts

Non-Competition; Non-Solicitation. (a) During the Restrictive Period, Seller will not, and shall cause its Affiliates to not, directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this Section 11.05. (c) For purposes of this Section 11.05:

Appears in 2 contracts

Samples: Asset Purchase Agreement (Spartan Stores Inc), Asset Purchase Agreement (Spartan Stores Inc)

Non-Competition; Non-Solicitation. (a) During For a period of five (5) years commencing on the Restrictive Closing Date (the "Restricted Period, Seller will not, and shall cause its Affiliates to not, directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity"), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall not, and shall ensure that none not permit any of its Affiliates shallshareholders, enter into directors, officers, employees or affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the business of aggregating, managing or selling infrastructure data (the "Restricted Business") anywhere in the world; (ii) have an interest in any sublease under nor make Person that engages directly or indirectly in the Restricted Business anywhere in the world in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between Buyer and customers or suppliers of Buyer. Notwithstanding the foregoing, Seller may own, directly or indirectly, solely as an assignment investment, securities of any Person traded on any national securities exchange if Seller is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own five percent (5.00%) or more of any class of securities of such Person. (b) During the Lease applicable Restricted Period, Seller shall not, and shall not permit any of its of its shareholders, directors, officers, employees or affiliates to, directly or indirectly, hire or solicit any employee of Buyer or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a File Buy Store if general solicitation which is not directed specifically to any such sublease or assignment wouldemployees; provided, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth that nothing in this Section 11.055.01(b) shall prevent Seller any of its of its shareholders, directors, officers, employees or affiliates from hiring: (i) any employee whose employment has been terminated by Buyer; or (ii) after one hundred eighty (180) days from the date of termination of employment, any employee whose employment has been terminated by the employee. (c) For During the Restricted Period, Seller shall not, and shall not permit any of its of its shareholders, directors, officers, employees or affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of Buyer or potential clients or customers of Buyer for purposes of diverting their business or services from Buyer. (d) If Seller breaches, or threatens to commit a breach of, any of the provisions of this Section 11.055.01, Buyer shall have the following rights and remedies, each of which rights and remedies shall be independent of the others and severally enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to Buyer under law or in equity: (i) the right and remedy to have such provision specifically enforced by any court having jurisdiction, it being acknowledged and agreed that any such breach or threatened breach may cause irreparable injury to Buyer and that money damages may not provide an adequate remedy to Buyer; and (ii) the right and remedy to recover from the Seller all monetary damages suffered by Buyer as the result of any acts or omissions constituting a breach of this Section 5.01. (e) Seller acknowledges that the restrictions contained in this Section 5.01 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.01 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable law. The covenants contained in this Section 5.01, and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 2 contracts

Samples: Asset Purchase Agreement (Geospatial Corp), Asset Purchase Agreement (Geospatial Corp)

Non-Competition; Non-Solicitation. (a) During the Restrictive Restricted Period, Seller will notETH and its direct and indirect Subsidiaries (collectively, and the “Restricted Parties”) shall cause its Affiliates to not, directly or indirectly (including as a memberindirectly, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction except with any other PersonBuyer’s prior written consent, (i) engage in any manner or assist others in engaging in the business of the Companies or the Company Subsidiaries, including the Business; (ii) own, manage, operate, control, or participate or engage in the ownership, management, operation, operation or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange business that, directly or dealer quotation system provided indirectly, competes with the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, Business; or (iii) knowingly permit such Seller's solicit any customer of the Companies or its Affiliate's namethe Company Subsidiaries to purchase any goods or services sold by the Companies or the Company Subsidiaries as of the Closing Date from any Person other than Buyer, including "The Pharm" the Companies or the Company Subsidiaries. Notwithstanding the foregoing, nothing contained in the first sentence of this Section 6.7(a) shall be construed as precluding any partRestricted Party from owning, combination directly or derivation thereofindirectly, to be used in connection with less than 5% of the outstanding equity securities of a publicly-held corporation engaged, directly or otherwise knowingly lend assistance (financial or otherwise) to any Personindirectly, in each case in any Restricted Business in the Restricted Territory business of the Companies or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;Company Subsidiaries. (b) With respect to each of During the File Buy StoresRestricted Period, Seller the Restricted Parties shall not, and shall ensure that none of its Affiliates shallexcept with Buyer’s prior written consent, enter into directly or indirectly, hire or solicit any sublease under nor make an assignment director, officer or employee of the Lease applicable Companies or the Company Subsidiaries or encourage any such director, officer or employee to a File Buy Store if leave such sublease employment; provided, however, that general solicitations not directed specifically to any such directors, officers or assignment would, or could reasonably employees shall not be expected to, result in a breach of any of the restrictive covenants set forth hereof; provided, further, that nothing in this Section 11.056.7(b) shall prevent any Restricted Party from hiring or soliciting any director, officer or employee that was terminated by the Companies or the Company Subsidiaries more than twelve (12) months prior to such hiring or solicitation. (c) For purposes The Restricted Parties shall not make, or cause to be made, to any Person any disparaging statement about the Business, the Companies, the Company Subsidiaries, Buyer or any of Buyer’s Affiliates or Representatives (including with respect to the products, services, employees or directors of any such Person) that would or would reasonably be expected to adversely impact the goodwill, reputation or business relationships thereof in any material respect; provided, that this Section 6.7(c) shall not prohibit the making of truthful statements required by Law, governmental testimony or filings, or administrative, arbitral or similar legal proceedings (including depositions in connection with such proceedings), or in connection with the enforcement (or defense) of any rights or pursuit of any remedies relating to this Agreement or the transactions contemplated hereby. (d) Each Seller hereby acknowledges that, except for the Sellers’ willingness to comply with the terms of this Section 11.05:6.7 (and to cause the compliance with such terms by the other Restricted Parties), Buyer would not have entered into this Agreement and that a violation of this Section 6.7 will cause Buyer irreparable harm which would not be adequately compensated for by money damages. Each Seller therefore agrees that, in the event of any actual or threatened violation of this Section 6.7, Buyer shall be entitled to a temporary restraining order and to preliminary and final injunctive relief against the applicable Seller or other Restricted Party to prevent any violations of this Section 6.7 (without the necessity of posting a bond) and to recover its reasonable attorneys’ fees and any other costs and expenses incurred in the enforcement of this Section 6.7; provided, that it is acknowledged and agreed that the rights and remedies provided under this Section 6.7(d) are cumulative and in addition to any other rights and remedies that Buyer may have hereunder or at law or in equity. It is the intent and understanding of each party that if, in any action before any court or agency legally empowered to enforce this Section 6.7, any term, restriction, covenant or promise in this Section 6.7 is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the extent necessary to make it enforceable by such court or agency.

Appears in 2 contracts

Samples: Equity Purchase Agreement (Esco Technologies Inc), Equity Purchase Agreement (Sonoco Products Co)

Non-Competition; Non-Solicitation. The Parties agree that, as part of the consideration for the payment of the Purchase Price and completion of the transactions contemplated herein by the Purchaser, for a period of two (a2) During years following the Restrictive PeriodClosing Date, Seller will notneither of the Seller, and shall cause its the Guarantor nor any of their respective Affiliates to notwill: (i) engage, directly or indirectly (indirectly, in any activity similar to or that would compete with the Business in Europe and in the form and within the scope as the Business is conducted at Closing, including as a partner, shareholder, member, employee, principal, agent, shareholder trustee or investor of any Person consultant; or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership an interest in - 33 - (other than through any Person engaged in any activity similar to or that would compete with the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate Business in Europe and in the activities of such Person) a Person that operates a Restricted form and within the scope as the Business in the Restricted Territory, is conducted at Closing; (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case intentionally interfere in any Restricted Business in material respect with the Restricted Territory business relationships (whether formed prior to or after the date of this Agreement) between the Purchaser and customers or suppliers of the Purchaser or the Business; (iv) induce or attempt solicit any employee of the Purchaser, including the Employees to inducebe Transferred, or assist anyone else encourage any such employee to induce leave such employment, provided that this shall not restrict the Seller or attempt to induceany Affiliate of the Seller from using general advertisements that are not directly targeted at any such employee; or (v) directly or indirectly, any customer within the Restricted Territory to reduce solicit or discontinue its business or solicit, divert, take awayentice, or attempt to solicitsolicit or entice, divertany clients or customers of the Purchaser or potential clients or customers of the Purchaser or the Business for the purposes of diverting their business or services from the Purchaser. Notwithstanding lit. (i) and (ii) above, the Seller, the Guarantor and any of their respective Affiliates shall be entitled to acquire and hold, directly or take away indirectly, participations in legal entities whose business competes with the Business, provided however, that such participation shall not exceed five (5)% of the voting rights in such legal entity and the Seller, the Guarantor or the respective Affiliate is excluded from any tradecontrol over the management of such other business. For the avoidance of doubt, clientsthis Non-Competition Clause does not apply to: (a) all U.S. activities of the Seller, customers, business, the Guarantor or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; any of its affiliates; (b) With respect to each of any worldwide sales by the File Buy StoresSeller, Seller shall not, and shall ensure that none the Guarantor or any of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach affiliates of any of the restrictive covenants set forth sawmill-products that were not manufactured in this Section 11.05. Europe; (c) For purposes from and after termination of the Sales and Distribution Agreement, to any non-European sale of sawmill products that were manufactured in Europe; (d) any sales by KTI in respect of Declined Orders upon equivalent terms; and (e) if the Purchaser terminates the Sales and Distribution Agreement in respect of any or all the countries in the Middle East or North Africa, any sales by KTI to such countries. The Seller and the Guarantor each acknowledge that the restrictions contained in this Section 11.05:§ 16.5 are reasonable and necessary to protect the legitimate interests of the Purchaser and constitute a material inducement to the Purchaser to enter into this Agreement and consummate the transactions contemplated herein.

Appears in 2 contracts

Samples: Asset Purchase Agreement, Asset Purchase Agreement (Mercer International Inc.)

Non-Competition; Non-Solicitation. In consideration of the receipt of the Restricted Stock granted pursuant to this Agreement the receipt and sufficiency of which Employee hereby acknowledges, the Employee agrees that while he or she is employed by the Company or any of its Subsidiaries (acollectively, the “Company Group”) During and for a period of one (1) year after the Restrictive Periodeffective date of termination of his or her employment with the Company Group for any reason, Seller he or she will not: (i) Either directly or indirectly, engage in any business or enterprise (whether as owner, partner, officer, director, employee, independent contractor, consultant, investor, lender or otherwise, except as the holder of not more than one percent (1%) of the outstanding stock of a publicly-held company) that competes anywhere in any geographic area where the Company does business, including but not limited to the United States and shall cause its Affiliates to notCanada and their respective states, territories or provinces (collectively, the “Territory”) with the business of the Company Group as then engaged in or any prospective business which the Company is actively developing or implementing by any member of the Company Group or any of their respective Affiliates; (ii) Either alone or in association with others, directly or indirectly, (x) solicit, or permit any organization directly or indirectly controlled by the Employee to solicit, any employee of the Company Group to leave the employ of the Company Group, or (including y) solicit for employment or engage as an independent contractor, or permit any organization directly or indirectly controlled by the Employee to solicit for employment or engage as an independent contractor, any person who was employed by the Company Group at any time during the term of the Employee’s employment with the Company Group and whose employment with the Company Group has been terminated for a member, agent, shareholder or investor of any Person or in any other capacity), either period less than six months; or (iii) Either alone or in conjunction association with others, directly or indirectly, solicit or otherwise attempt to establish for himself or herself or any other person, firm or entity, anywhere in the Territory any business relationship of a nature that is competitive with the business or relationship of any member of the Company Group with any other Personperson, firm or corporation which was a customer, client, vendor, supplier or distributor (ior an actively sought prospective customer, client, vendor, supplier or distributor) in of any manner participate or engage in member of the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in Company Group and with whom the Restricted Territory (as hereinafter defined), (ii) have any Employee had direct or indirect ownership interest in - 33 - (other than through the ownership contact or knowledge, either personally or as a result of 10% or less Employee’s supervision of any class of securities registered on a recognized stock exchange Company Group employee, or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territoryencourage, (iii) knowingly permit such Seller's or its Affiliate's nameinduce, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce solicit or attempt to induce, solicit any customer within such person or entity to terminate his or her relationship with the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this Section 11.05. (c) Company. For purposes of this Section 11.05:5(a)(iii), the Company Group’s business or relationship with a customer, client, vendor, supplier or distributor (or actively sought prospective business or relationship) shall have existed: (x) at any time during the Employee’s period of employment with the Company Group (in the case of any activity during such period of employment); or (y) during the twelve-month period preceding the effective date of the Employee’s termination of employment with the Company Group (in the case of any activity after such termination of employment).

Appears in 2 contracts

Samples: Restricted Stock Agreement (Hd Supply, Inc.), Employee Stock Option Agreement (Hd Supply, Inc.)

Non-Competition; Non-Solicitation. (a) During Each of Xxxxxxx X. Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx X. Xxxxxxx, Xxxxxx Xxxxxxxxxx, Xxxxx Xxxxxxx, Xxxx Xxxxxxxx, Xxxxxx Xxxxxxxx, Xxxxxx Xxxxxxx, Xxxxx Xxxxxxx and Xxxxx Xxxxxxx agree that, from the Restrictive PeriodClosing Date until the date that is five (5) years following the Closing Date, Seller will he or she shall not, and shall cause its his or her Affiliates to notnot to, without the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), directly or indirectly indirectly: (A) hire or solicit for employment any employee of the Company or any of its Subsidiaries or any Person who has been an employee of the Company or any of its Subsidiaries in the preceding twelve (12) months, except for any employee of the Company or any of its Subsidiaries who, following the Closing, has been involuntarily terminated by the Company or Buyer for a six (6)-month period prior to commencement of employment with such Person or (B) induce or encourage any employee of an the Company or any of its Subsidiaries to no longer be employed by the Company or any of its Subsidiaries; or (ii) (A) engage in the Competing Business in any manner or capacity (whether as an officer, director, employee, consultant, owner, investor or otherwise with respect to any Competing Business), (B) own any equity interest, or operate, control or participate (including as a memberjoint venture partner, agent, shareholder representative, consultant or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (ilender) in any manner participate Person that engages directly or engage indirectly in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined)Competing Business, (iiC) have solicit any direct or indirect ownership interest in - 33 - (investors, agents, providers/suppliers, distributors or other than through similar parties of the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" Company or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Personof its Subsidiaries, in each case case, in any Restricted respect of a Competing Business in the Restricted Territory or (ivD) induce intentionally interfere with the business relationships between the Company or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of Subsidiaries and any of the restrictive covenants set forth in this Section 11.05its investors. (c) For purposes of this Section 11.05:

Appears in 2 contracts

Samples: Merger Agreement, Merger Agreement

Non-Competition; Non-Solicitation. (a) During For a period of three years commencing on the Restrictive Closing Date (the “Restricted Period, Seller will not, and shall cause its Affiliates to not, directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of not permit any of the restrictive covenants set forth Restricted Persons to, directly or indirectly (except for the benefit of the Buyer or its Affiliates, including in connection with any obligations under the Co-Pack Agreement), (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former client or customer of Seller 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. Notwithstanding the foregoing, Seller may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Seller is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own 5% or more of any class of securities of such Person. (b) Seller acknowledges that a breach or threatened breach of this Section 11.056.07 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Seller of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). (c) For purposes of Seller acknowledges that the restrictions contained in this Section 11.05:6.07 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 6.07 should ever be adjudicated to exceed the time, geographic, product or service or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service or other limitations permitted by applicable Law. The covenants contained in this Section 6.07 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 2 contracts

Samples: Asset Purchase Agreement (Seneca Foods Corp), Asset Purchase Agreement (Paradise Inc)

Non-Competition; Non-Solicitation. (a) During the Restrictive PeriodSubject to Section 7.5(b), as a material inducement to Purchaser to enter into this Agreement, Seller will shall not, and shall cause its Affiliates to notnot to, directly or indirectly (including whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, agentowner, shareholder consultant or investor agent of, any other Person): (i) for a period of any Person four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manageor, joinwith respect to any Competing Business Activities, assistadvise, supportassist or consult with, or provide products have an interest in, any other Person that, directly or services to indirectly, undertakes, manages, participates in, carries on or foris engaged in, or provide financial or other assistance to a Restricted any Competing Business Activities anywhere in the Restricted Territory (world, including as hereinafter defined)a partner, shareholder, member, employee, principal, agent, trustee or consultant; and (ii) have any direct or indirect ownership interest in - 33 - (other than through A) for a period of three (3) years following the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted TerritoryClosing Date, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divertentice, take awayencourage or influence, or attempt to solicit, divertentice, encourage or influence, or take away attempt to solicit, entice, encourage or influence, any tradeof individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, clientsthe “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, customersemploy, businessengage or contract with any member of the Senior Management of the Business to perform services other than for the benefit of Purchaser or the Acquired Companies or (B) for a period of two (2) years following the Closing Date, solicit, entice, encourage or influence, or goodwill attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise compete leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any Transferred Employee to perform services other than for accounts the benefit of Purchaser or personnel within the Restricted Territory;Acquired Companies. (b) With Notwithstanding Section 7.5(a)(ii), Sellers and their Affiliates shall not be prohibited from or restricted in any way with respect to: (i) advertising job openings by use of newspapers, magazines, the Internet and other media not specifically directed at individual Transferred Employees or hiring any such Transferred Employees as a result thereof; (ii) hiring or soliciting any Transferred Employee who has terminated employment with Purchaser, the Acquired Companies or any Affiliate thereof, at least nine (9) months prior to each the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the File Buy StoresAcquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller shall not, and shall ensure or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that none Seller or any of its Affiliates shall, enter into any sublease under nor make an assignment (other than the Acquired Companies) engages in as of the Lease applicable to date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a File Buy Store if such sublease passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or assignment wouldprivate) that is primarily engaged in Competing Business Activities; or (v) acquiring (in a single transaction or series of related transactions) any Person that is, or could reasonably be expected tohas a subsidiary, result division, group, franchise or segment that is, engaged in a breach any Competing Business Activity and, following such acquisition, actively engaging in any such Competing Business Activity, so long as for the most recent fiscal year ended prior to the date of any such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the restrictive covenants set forth in this Section 11.05total consolidated revenues of such Person. (c) For purposes Seller expressly acknowledges that (i) each of the restrictions contained in this Section 11.05:7.5 are reasonable in all respects (including with respect to subject matter, geographical scope and time period) and such restrictions are necessary to protect Purchaser’s interest in, and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements contained in this Section 7.5 and (iv) Purchaser would not have entered into this Agreement or any of the transactions contemplated hereby without the restrictions contained in this Section 7.5 and this Section 7.5 being in full force and effect and binding and enforceable covenants of Seller. If a court of competent jurisdiction finds that the time period of any of the foregoing covenants is too lengthy or the geographic coverage or scope of any of the covenants is too broad, the restrictive time period will be deemed to be the longest period permissible under applicable Legal Requirement and the geographic coverage and scope will be deemed to comprise the largest coverage and scope permissible under applicable Legal Requirements. With respect to each restrictive covenant, the contemplated restricted period shall be extended during the term of any breach of such restrictive covenant.

Appears in 2 contracts

Samples: Transaction Agreement (DOVER Corp), Transaction Agreement (Terex Corp)

Non-Competition; Non-Solicitation. (a) During For a period of five (5) years commencing on the Restrictive Closing Date (the “Restricted Period”), each of the Seller will Parties agrees it shall not, and shall cause not permit any of its respective Affiliates to to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant. Notwithstanding the foregoing, Kucera, JVK and their respective Affiliates shall not be limited from engaging in Restricted Business in the Territory. Moreover, each of the Seller Parties may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if such Seller Party is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly indirectly, own five percent (including as a member, agent, shareholder 5%) or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) . Nothing in this Agreement shall limit Brooks from advising clients in her capacity as a Person that operates a certified public accountant, including clients engaging in the Restricted Business in the Territory. Nothing in this Agreement shall limit a Seller Party or its Affiliates from acting as a manufacturer’s representative for HVAC equipment, and acting as such shall not be engaging in a Restricted TerritoryBusiness. (b) During the Restricted Period, each of the Seller Parties agrees it shall not, and shall not permit any of its respective Affiliates to, directly or indirectly, hire or solicit any employee of the Company or the Buyer or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 6.07(b) shall prevent a Seller Party or any of their respective Affiliates from hiring (i) Dan Benson, (ii) any employee whose employment has been terminated by the Company or Buyer or (iii) knowingly permit such Seller's or its Affiliate's nameafter 365 days from the date of termination of employment, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance employee whose employment has been terminated by the employee. (financial or otherwisec) to any Person, in each case in any Restricted Business in During the Restricted Territory Period, each Seller Party agrees it shall not, and shall not permit any of its respective Affiliates to, directly or (iv) induce or attempt to induceindirectly, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divertany clients or customers of the Company or potential clients or customers of the Company for purposes of diverting their business or services from the Company as conducted on the date of Closing. Nothing in this Agreement shall limit a D-Velopment, Brooks, TFT, Benson or take away Tobolski or their respective Affiliates from soliciting any trade, clients, customers, business, other than Restricted Business, from current and future customers or goodwill suppliers of the Company. Kucera, JVK and their respective Affiliates shall not be limited from soliciting any business, including Restricted Business, from current and future customers or otherwise compete for accounts or personnel within suppliers of the Restricted Territory;Company. (bd) With respect Each Seller Party acknowledges that a breach or threatened breach of this Section 6.07 would give rise to each of irreparable harm to the File Buy StoresCompany and/or Buyer, Seller shall notfor which monetary damages would not be an adequate remedy, and shall ensure hereby agrees that none in the event of its Affiliates a breach or a threatened breach by such Seller Party of any such obligations, Buyer shall, enter into in addition to any sublease under nor make and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an assignment injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). (e) Each Seller Party acknowledges that the Lease restrictions applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth Seller Party contained in this Section 11.05. (c) For purposes 6.07 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 11.05:6.07 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 6.07 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 2 contracts

Samples: Membership Interest Purchase Agreement (Aaon, Inc.), Membership Interest Purchase Agreement (Aaon, Inc.)

Non-Competition; Non-Solicitation. As a material inducement to the Company to enter into this Agreement, Executive hereby expressly agrees to be bound by the following covenants, terms and conditions. Executive hereby agrees that he will have access to trade secrets, proprietary and confidential information relating to the Company and its affiliates and their respective clients, including but not limited to, marketing data, financial information, client and prospect lists (including without limitation, computer- and web-based compilations (including but not limited to sxxxxxxxxx.xxx or other CRM system data) maintained by the Company or its affiliates or Executive), and details of programs and methods, potential and actual acquisitions, divestitures and joint ventures, pricing policies, strategies, terms of service, business and product plans, cost information and software, in each case of the Company, its affiliates and/or their respective clients. Accordingly, Executive voluntarily enters into the following covenants to provide the Company with reasonable protection of those interests: (a) During Executive agrees that during the Restrictive Periodterm of his employment with the Company and for a period of one year thereafter, Seller will Executive shall not, and shall cause its Affiliates to notalone or as an employee, directly or indirectly (including as a memberofficer, director, agent, shareholder (other than an owner of 2% or investor less of the outstanding shares of any Person publicly-traded company), consultant, partner, member, owner or in any other capacity), either alone directly or in conjunction with any other Person, indirectly: (i) engage in any manner participate Competitive Activity (as defined below) within or engage with respect to any location in the ownershipUnited States or abroad in which Executive performed or directed his services (including but not limited to sales and customer support calls, managementwhether conducted in person, operationby telephone or online) at any time during the 9-month period immediately preceding the termination of Executive’s employment for any reason (the “Territories”), or control of, form, acquire, invest assist any other person or organization in engaging in, financeor preparing to engage in, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business any Competitive Activity in the Restricted Territory (as hereinafter defined), such Territories; (ii) have solicit or provide services to any direct Clients, as defined below, of the Company and/or any of its affiliates, on his own behalf or indirect ownership interest in - 33 - (other than through the ownership of 10% or less on behalf of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Personthird party, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach furtherance of any of the restrictive covenants set forth in this Section 11.05. (c) Competitive Activity. For purposes of this Section 11.05:6, “Client” shall mean any then-current customer of the Company, former customer of the Company (who was a customer of the Company within the 12-month period immediately preceding the termination of Executive’s employment hereunder); (iii) encourage, participate in or solicit any employee or consultant of the Company and/or any affiliate to engage in Competitive Activity or to accept employment with any third party, whether or not engaged in Competitive Activity. This subsection (iii) shall be limited to employees and consultants who: (A) are current employees or consultants; or (B) left the employment of the Company or whose provision of services to the Company terminated within the 12-month period prior to Executive’s termination of employment with the Company for any reason; and (iv) for purposes of this Agreement, “Competitive Activity” shall mean any offering, sale, licensing or provision by any entity of any software, application service or system, in direct competition with the Company’s offerings and including electronic or digital document repositories for facilitating transactional due diligence, mergers, acquisitions, divestitures, financings, investments, investor relations, research and development, clinical trials or other business processes for which the Company’s products or services are or have been used during the 12-month period preceding termination of Executive’s employment for any reason.

Appears in 2 contracts

Samples: Employment Agreement (Precipio, Inc.), Employment Agreement

Non-Competition; Non-Solicitation. (a) During a. Except as prohibited by law, the Restrictive Period, Seller will notParticipant agrees that during his or her employment with the Company or its Affiliates, and shall cause for the one year period following the Participant’s termination of employment for any reason, the Participant will not directly or indirectly, own, manage, operate, control (including indirectly through a debt, equity investment, or otherwise), provide services to, or be employed by, any person or entity engaged in any business that is (i) located in a region with respect to which the Participant had substantial responsibilities while employed by the Company or its Affiliates Affiliates, and (ii) competitive, with (A) the line of business or businesses of the Company or its Subsidiaries that the Participant was employed with during the Participant’s employment (including any prospective business to be developed or acquired that was proposed at the date of termination), or (B) any other business of the Company or its Subsidiaries with respect to which the Participant had substantial exposure during such employment. b. Except as prohibited by law, the Participant further agrees that during his or her employment with the Company or its Affiliates, and for the two-year period thereafter, the Participant will not, directly or indirectly (including as a memberindirectly, agent, shareholder on his or investor her own behalf or on behalf of any Person or in any other capacity), either alone or in conjunction with any other Person, another (i) solicit, recruit, aid or induce any employee of the Company or any of its Affiliates to leave their employment with the Company or its Affiliates in any manner participate order to accept employment with or engage in render services to another person or entity unaffiliated with the ownership, management, operationCompany or its Subsidiaries, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, supporthire or knowingly take any action to assist or aid any other person or entity in identifying or hiring any such employee, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have solicit, aid, or induce any direct customer of the Company or indirect ownership interest any of its Affiliates to purchase goods or services then sold by the Company or its Affiliates from another person or entity, or assist or aid any other persons or entity in - 33 - (other than through the ownership of 10% identifying or less of soliciting any class of securities registered on a recognized stock exchange such customer, or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" otherwise interfere with the relationship of the Company or any part, combination or derivation thereof, to be used in connection of its Subsidiaries with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue of its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clientsemployees, customers, agents, or representatives. c. Irreparable injury will result to the Company, and to its business, or goodwill or otherwise compete for accounts or personnel within in the Restricted Territory; (b) With respect to each event of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach by the Participant of any of the restrictive Participant’s covenants and commitments under this Award, including the covenants of non-competition and non-solicitation. Therefore, in the event of a breach of such covenants and commitments, in the sole discretion of the Company, any of the Participant’s unvested Restricted Shares or Restricted Share Units shall be immediately rescinded and the Participant will forfeit any rights he or she has with respect thereto. Furthermore, by acknowledging this Award, and not declining the Award, in the event of such a breach, upon demand by the Company, the Participant hereby agrees and promises immediately to deliver to the Company the number of Shares (or, in the discretion of the Company, the cash value of said Shares) the Participant received for Restricted Share Units that vested or were delivered during the period beginning six months prior to the Participant’s termination of employment and ending on the six-month anniversary of such termination of employment. In addition, the Company reserves all rights to seek any and all remedies and damages permitted under law, including, but not limited to, injunctive relief, equitable relief and compensatory damages. The Participant further acknowledges and confirms that the terms of this section, including but not limited to the time and geographic restrictions, are reasonable, fair, just and enforceable by a court. This Award, the Award Notice and any other documents expressly referenced in this Award contain all of the provisions applicable to the Award and no other statements, documents or practices may modify, waive or alter such provisions unless expressly set forth in writing, signed by an authorized officer of the Company and delivered to the Participant. The Company has caused this Section 11.05. (c) For purposes Award to be executed by one of this Section 11.05:its authorized officers as of the date of grant. Xxxxxx X. Xxxxxxxxx Executive Vice President and General Counsel

Appears in 2 contracts

Samples: Restricted Share or Restricted Share Unit Award Agreement (Johnson Controls International PLC), Option or Share Appreciation Right Award Agreement (Johnson Controls International PLC)

Non-Competition; Non-Solicitation. (a) During For a period of three (3) years commencing on the Restrictive Closing Date (the “Restricted Period”), each Seller will and Key Holder shall not, and shall cause not permit any of its Affiliates to, directly or indirectly, unless consented to by Buyer in writing, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages, directly or indirectly, in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former client or customer of such Seller, such Key Holder 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. Notwithstanding the foregoing, a Seller or Key Holder may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if such Seller or Key Holder is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly (including as a memberindirectly, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10own 5% or less more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;. (b) With respect to During the Restricted Period, each of the File Buy Stores, Seller Sellers and Key Holders shall not, and shall ensure that none not permit any of its respective Affiliates shallto, enter into directly or indirectly, hire or solicit any sublease under nor make an assignment of Person who is or was employed in the Lease applicable to a File Buy Store if such sublease or assignment wouldBusiness during the Restricted Period, or could reasonably be expected to, result in a breach of encourage any of the restrictive covenants set forth in this Section 11.05such employee to leave such employment or hire any such employee who has left such employment. (c) For purposes The Sellers and Key Holders each acknowledge that a breach or threatened breach of this Section 11.05:6.07 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by a Seller or Key Holder of any such obligations, Buyer shall, in addition to any and all other rights and remedies permitted by applicable Law that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). (d) The Sellers and Key Holders each acknowledge that the restrictions contained in this Section 6.07 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 6.07 should ever be adjudicated to exceed the time, geographic, product or service or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service or other limitations permitted by applicable Law. The covenants contained in this Section 6.07 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 2 contracts

Samples: Asset Purchase Agreement (Uncommon Giving Corp), Asset Purchase Agreement (Uncommon Giving Corp)

Non-Competition; Non-Solicitation. (a) During For a period of three (3) years as to the Restrictive Warrantors and one (1) year as to Xx. Xxxxx, in each case commencing on the Closing Date (as applicable, the “Restricted Period”), Seller will Warrantors and Xx. Xxxxx (each, a “Restricted Person”) shall not, and shall cause its not permit any of such Restricted Person’s Affiliates to notto, directly or indirectly (including as a memberindirectly, agent, shareholder other than on behalf of the Companies or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, Beneficiary: (i) in any manner participate or engage in or assist others in engaging in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), Territory; (ii) have any direct financial or indirect ownership equity interest in - 33 - any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant (other than through interests in Beneficiary or any successor); or (iii) intentionally interfere in any material respect with the ownership business relationships between the Companies and customers or suppliers of 10the Companies. Notwithstanding the foregoing, a Restricted Person may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if the Restricted Person is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own 5% or less more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;. (b) With respect to each of During the File Buy Storesapplicable Restricted Period, Seller the Restricted Persons shall not, and shall ensure that none not permit any of its their Affiliates shallto, enter into directly or indirectly, hire away or solicit any sublease under nor make an assignment employee of the Lease applicable Companies nor encourage any such employee to leave such employment, except pursuant to a File Buy Store if general solicitation which is not directed specifically to any such sublease or assignment wouldemployees; provided, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth that nothing in this Section 11.056.09(b) shall prevent any Restricted Person or any of their Affiliates from hiring any employee whose employment with the Companies or Beneficiary has previously terminated. (c) For During the Restricted Period, the Restricted Persons shall not, and shall not permit any of their Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Companies or potential clients or customers of the Companies for purposes of diverting their business or services from the Companies. (d) Each Restricted Person acknowledges that a breach or threatened breach of this Section 11.05:6.09 would give rise to irreparable harm to Beneficiary, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by a Restricted Person of any such obligations, Beneficiary shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to injunctive relief, including a temporary restraining order, specific performance and any other similar relief that may be available from a court of competent jurisdiction (without any requirement to post bond). (e) Each Restricted Person acknowledges that the restrictions contained in this Section 6.09 are reasonable and necessary to protect the legitimate interests of Beneficiary and constitute a material inducement to Beneficiary to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 6.09 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 6.09 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction. (f) Notwithstanding any other provision of this Agreement, except for actions taken in concert, under no circumstances shall any Restricted Person have any liability for or obligation in respect of any action or omission by another Restricted Person (or any Affiliate of such other Restricted Person) that breaches or threatens to breach any obligations under this Section 6.09.

Appears in 2 contracts

Samples: Stock Contribution Agreement, Stock Contribution Agreement (Apricus Biosciences, Inc.)

Non-Competition; Non-Solicitation. Xxxxxx Xxxxxxx hereby acknowledges that: (i) in addition to disposing of his indirect beneficial ownership interest in the Company as set forth in this Agreement, he is selling the goodwill of the Company associated with or attributable to the Contributed Interests; (ii) he has contributed to the development of the goodwill of the Company; and (iii) the parties hereto have agreed upon the consideration for the Contributed Interests to specifically include and reflect such sale of goodwill. In consideration of the sale of Xxxxxx Xxxxxxx’x indirect beneficial ownership in the Company, Xxxxxx Xxxxxxx agrees that: (a) During Except as provided in this Section 7.09, during the Restrictive period commencing at the Closing and up to and through the later of (x) the date arising three (3) years after the Closing Date and (y) the date arising two (2) years after the termination of his employment by the Purchaser or any of its Affiliates, (the “Restricted Period”), Seller will Xxxxxx Xxxxxxx, whether directly or indirectly, shall not, and shall cause its Affiliates to not, directly whether for himself or indirectly (including as a member, agent, shareholder or investor on behalf of any Person or in any other capacity), either alone or in conjunction with any other PersonPerson in any capacity (as a principal, equity holder, joint-venturer, partner, director, officer, agent, executive, consultant, contractor, employee, lender or otherwise) (collectively, the “Covenanting Party”): (i) in induce, solicit, hire, recruit or attempt to persuade any manner participate Person to terminate such Person’s employment or other relationship with the Company, the Purchaser or any of their Affiliates (collectively, “Company Parties”) or not to establish an employment or other relationship with any Company Party, whether or not such Person is or would be an employee, consultant, contractor, manager, director, officer and/or employee, whether or not such relationship is or would be pursuant to a written or oral agreement and whether or not such relationship is for a specific period of time or is at-will; (ii) employ or establish a business relationship with (or attempt to employ or establish a business relationship with), or encourage or assist any Person to employ or establish a business relationship with, any individual who is, was at any time within the six (6) month period prior to the date hereof, or will be at any time during the Restricted Period, an employee, consultant, contractor, manager, officer, director or employee of any Company Party; (iii) direct or engage in any act which may interfere with or materially and adversely affect, alter or change the ownershiprelationship (contractual or otherwise) of any Company Party with any Person that is a Client, managementProspective Client, operationvendor, supplier or contractor of any Company Party, or control ofotherwise induce or attempt to induce any such Person to cease doing business, formreduce or otherwise limit its business with any Company Party; (iv) solicit business from any Client or Prospective Client, acquireor do business with any Client or Prospective Client, invest involving the Business or any business that is competitive, directly or indirectly, with the Business; or (v) engage or participate in, finance, ownmanage, operate, managebe employed by, joinconsult with, assist, supportadvise, or provide products or services to or forbe financially interested in, or provide financial or other assistance to a Restricted Business any Person engaged in the Restricted Territory Business anywhere where any Company Party transacts the Business during the three (as hereinafter defined)3) year period immediately prior to the Closing Date (provided, however, that nothing contained in this ‎Section 7.09 shall prevent Xxxxxx Xxxxxxx from holding for passive investment less than five percent (ii5%) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of equity securities registered of a company whose securities are publicly traded on a recognized stock national securities exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;national market system). (b) With respect to each of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this Section 11.05. (c) For purposes of this Section 11.05:‎Section 7.09, “Client” means a Person for whom or which any Company Party performed services or to whom or which any Company Party sold or licensed its products, during the prior twelve (12) months. “Prospective Client” means Persons whose business was solicited by any Company Party during the prior twelve (12) months.

Appears in 2 contracts

Samples: Contribution Agreement (Greenlane Holdings, Inc.), Contribution Agreement (Greenlane Holdings, Inc.)

Non-Competition; Non-Solicitation. (a) During For a period of five (5) years commencing on the Restrictive Closing Date (the “Restricted Period”), no Seller will notshall, and shall cause its not permit any of his Affiliates to, directly or indirectly: (i) engage in or assist others in engaging in logistic management services and supply chain solutions, including last mile delivery service (the “Restricted Business”) in the State of Utah (the “Territory”); (ii) have an interest in any Person that engages, directly or indirectly, in the Restricted Business in the Territory in any capacity, including as a partner, stockholder, director, officer, member, manager, employee, contractor, principal, agent, volunteer, intern, advisor, or consultant; or (iii) intentionally interfere in any material respect with the business relationships (only if formed prior to the date of this Agreement and only in respect of business relationships for business solely conducted in the Territory) between the Company and customers or suppliers of the Company in the Territory. Notwithstanding the foregoing, each and every Seller may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange or over-the-counter market if such Seller is not a controlling Person of, or a member of a group that controls, such Person and does not, directly or indirectly (including as a memberindirectly, agent, shareholder or investor own in excess of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 104.99% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;. (b) With respect to each of During the File Buy StoresRestricted Period, no Seller shall notshall, and shall ensure that none not permit any of its his Affiliates shallto, enter into directly or indirectly, hire or solicit any sublease under nor make an assignment current or former employee of the Lease applicable Company or encourage any employee to leave the Company’s employment, except pursuant to a File Buy Store if general solicitation that is not directed specifically to any such sublease or assignment wouldemployees; provided, or could reasonably be expected tohowever, result in a breach of any of the restrictive covenants set forth nothing in this Section 11.056.04(b) shall prevent any Seller or any of his Affiliates from hiring any employee terminated by the Company. (c) For purposes Each Seller acknowledges that a breach or threatened breach of this Section 11.05:Section 6.04 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that, in the event of a breach or a threatened breach by such Seller of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to petition a court of competent jurisdiction for equitable relief, including a temporary restraining order, an injunction, or specific performance (without such Seller requesting the Court to order the Buyer to post bond). (d) Each Seller acknowledges that the restrictions contained in this Section Section 6.04 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 6.04 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction or any Governmental Order, then any court of competent jurisdiction is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law or such Governmental Order. The covenants contained in this Section 6.04 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 2 contracts

Samples: Stock Purchase Agreement (ParcelPal Logistics Inc.), Stock Purchase Agreement

Non-Competition; Non-Solicitation. (a) During In order for Buyer to have and enjoy the Restrictive Periodfull benefit of the businesses of the Purchased Companies, Seller will and as a material inducement to Buyer to enter into this Agreement (without such inducement Buyer would not have entered into this Agreement), Griffon shall not, and shall cause its Affiliates Subsidiaries to not: (i) for a period of five (5) years, directly commencing on the Closing Date (the “Restricted Period”), undertake, participate in or indirectly (including as a membercarry on or be engaged in, agent, shareholder or investor of have any Person financial or other interest in any other capacityPerson whose primary business is, a Competing Business anywhere in the United States; (ii) during the Restricted Period, solicit, attempt to solicit or knowingly encourage any employee or consultant of any Purchased Company (including any individual who has been an employee or consultant of any Purchased Company at any time during the preceding twenty-four (24) month period prior to the time of such solicitation, encouragement or hiring) to resign or leave the employ or service of such Purchased Company or otherwise hire, employ, engage or contract any such employee or consultant to perform services other than for the benefit of such Purchased Company; or (iii) during the Restricted Period, solicit, attempt to solicit or knowingly encourage any customer or supplier of any Purchased Company (including any Person who has been a customer or supplier of any Purchased Company at any time during the twelve (12) month period immediately prior to the time of such solicitation or encouragement) to alter, reduce or terminate its business relationship with such Purchased Company; provided, for the avoidance of doubt, solicitation of such customers or suppliers in the Ordinary Course of Business unrelated to a Competing Business shall not constitute a violation of this Section 5.11(a)(iii). (b) Notwithstanding Section 5.11(a), either alone or in conjunction with any other Person, none of the following activities shall constitute a violation of Section 5.11(a): (i) in the advertisement of job openings by use of newspapers, magazines, the internet and other media not directed at employees, consultants or independent contractors of any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), Purchased Company; (ii) have any direct or indirect ownership interest in - 33 - holding up to five per cent (other than through 5%) of the ownership of 10% or less outstanding securities of any class of any publicly-traded securities registered on of a recognized stock exchange company that is engaged in a Competing Business; or dealer quotation system provided (iii) the applicable acquisition of any business or Person does not otherwise participate in the activities of such Person(an “Acquired Business”) conducting a Person that operates a Restricted Competing Business in the Restricted TerritoryUnited States provided that, as of the date of such acquisition, the revenue of such Competing Business for the last four fiscal quarters of such Acquired Business for which financial statements have been prepared is not greater than twenty-five per cent (iii25%) knowingly permit of the total revenue of the Acquired Business for such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, four fiscal quarter period (and continuing to engage in such acquired Competing Business so long as the foregoing percentage threshold continues to not be used in connection with or otherwise knowingly lend assistance exceeded). (financial or otherwisec) Notwithstanding anything to any Personthe contrary set forth herein, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each event of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this provisions of Section 11.05.5.11(a) (the “Restrictive Covenants”): (ci) For purposes the Restricted Period shall be tolled during the pendency of this Section 11.05:any breach of any of the Restrictive Covenants; (ii) Buyer and its Affiliates (including the Purchased Companies) shall have the right and remedy, without regard to any other available remedy, to (A) have the Restrictive Covenants specifically enforced by any court of competent jurisdiction and (B) have issued an injunction restraining any such breach without posting of a bond; it being understood that any breach of any of the Restrictive Covenants would cause irreparable and material Loss to Buyer and its Affiliates (including the Purchased Companies), the amount of which cannot be readily determined and as to which neither Buyer nor any of its Affiliates (including the Purchased Companies) will have any adequate remedy at Law or in equity; (iii) it is the desire and intent of the parties hereto that the Restrictive Covenants be enforced to the fullest extent permissible under the Laws and public policies applied in each jurisdiction in which enforcement is sought and if any Restrictive Covenant shall be adjudicated finally to be invalid or unenforceable, such Restrictive Covenant shall be amended to the maximum less restrictive limitations permitted under applicable Law to the extent necessary in order that such provision be valid and enforceable, the parties hereto hereby expressly acknowledge their desire that in such event such action be taken and the remainder of such Restrictive Covenant shall not thereby be affected and shall be given full effect without regard to invalid portions and such amendment shall apply only with respect to the operation of the Restrictive Covenant in the particular jurisdiction in which such adjudication is made; and (iv) the parties hereto acknowledge and agree that the Restrictive Covenants are necessary for the protection and preservation of the value and the goodwill of Buyer’s and the Purchased Companies’ businesses and are reasonable and valid in geographical and temporal scope and in all other respects.

Appears in 2 contracts

Samples: Share Purchase Agreement (Griffon Corp), Share Purchase Agreement (TTM Technologies Inc)

Non-Competition; Non-Solicitation. (a) During For a period of three (3) years commencing on the Restrictive Closing Date (the “Restricted Period”), Seller will Sellers shall not, and shall cause its not permit any of their respective Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, franchisor, franchisee, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between the Company and customers or suppliers of the Company; provided, however, that the foregoing restrictions shall not apply with respect to the ownership, operation and management of the Company Restaurants, provided that the Company Restaurants are operated and managed in accordance with Section 5.11. Notwithstanding the foregoing, Sellers and their respective Affiliates may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Sellers are not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly (including as a memberindirectly, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10own 5% or less more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;. (b) With respect to each of During the File Buy StoresRestricted Period, Seller Sellers shall not, and shall ensure that none not permit any of its their respective Affiliates shallto, enter into directly or indirectly, hire or solicit any sublease under nor make an assignment employee of the Lease applicable Company or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a File Buy Store if general solicitation which is not directed specifically to any such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth employees; provided that nothing in this Section 11.055.07(b) shall prevent Sellers or any of their Affiliates from hiring (i) any employee whose employment has been terminated by the Company or Buyer or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee. (c) For During the Restricted Period, Sellers shall not, and shall not permit any of their respective Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any franchise owner or operator of the Company for purposes of diverting their business or services from the Company. (d) Each Seller acknowledges that a breach or threatened breach of this Section 11.05:5.07 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Sellers of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). (e) Sellers acknowledge that the restrictions contained in this Section 5.07 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.07 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.07 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 2 contracts

Samples: Membership Interest Purchase Agreement (Fat Brands, Inc), Membership Interest Purchase Agreement (Fat Brands, Inc)

Non-Competition; Non-Solicitation. (a) During In order for the Restrictive PeriodBuyer to have and enjoy the full benefit of the Business, and as a material inducement to the Buyer to enter into this Agreement and the other Transaction Documents (without such inducement the Buyer would not have entered into this Agreement); (i) the Seller will shall not, directly or indirectly (whether by itself, through an Affiliate, in partnership or conjunction with, or as an employee, officer, director, manager, member, owner, consultant or agent of, any other Person) and shall cause its controlled Affiliates to not, for a period of five (5) years commencing on the Closing Date, undertake, participate or carry on or be engaged or have any financial or other interest in, or in any other manner advise or assist any other Person in connection with the operation of, a Restricted Business anywhere in the world; provided, however, that the Seller and its Affiliates shall not be restricted from acquiring any business that does not, and whose Subsidiaries do not, individually or in the aggregate, derive greater than 5% of its revenue from a Restricted Business; (ii) the Seller shall not, directly or indirectly (whether by itself, through any Affiliate, in partnership or conjunction with, or as an employee, officer, director, manager, member, owner, consultant or agent of, any other Person) and shall cause its controlled Affiliates to not, for a period of five (5) years commencing on the Closing Date, hire, solicit, entice, encourage or intentionally influence, or attempt to hire, solicit, entice, encourage or influence, any employee of the Buyer or any of its Affiliates to resign or leave the employ of the Buyer or any of its Affiliates; (iii) the Seller shall not, directly or indirectly (whether by itself, through an Affiliate, in partnership or conjunction with, or as an employee, officer, director, manager, member, owner, consultant or agent of, any other Person) and shall cause its controlled Affiliates to not, for a period of five (5) years commencing on the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any customer of the Buyer, the Business or any of its Affiliates (including any Person who has been a customer of the Business at any time during the period of 12 months before the Closing) to alter, reduce or terminate its business relationship with the Buyer or any of its Affiliates for the direct or indirect benefit of any Restricted Business; and (iv) the Seller shall not, directly or indirectly (whether by itself, through an Affiliate, in partnership or conjunction with, or as an employee, officer, director, manager, member, owner, consultant or agent of, any other Person) and shall cause its controlled Affiliates to not, for a period of five (5) years commencing on the Closing Date, use any of the machinery, equipment or other assets located at the Brainerd Facility as of the Closing other than the Transferred Brainerd Assets (the “Non-Transferred Brainerd Assets”) in a manner that competes with the Buyer or any of its Affiliates. The Seller expressly covenants and agrees that, with respect to any transfer (in whole or in part) of the Non-Transferred Brainerd Assets during the period commencing on the date hereof and ending on the five year anniversary of the Closing Date to any Person other than the Buyer and/or any of its Affiliates and its and their respective successors, assigns and transferees (each, a “Subsequent Asset Purchaser”), the Seller shall cause such Subsequent Asset Purchaser to agree in a written agreement reasonably satisfactory to, and expressly enforceable by, the Buyer and/or its Affiliates and its and their respective successors, assigns and transferees, as a condition precedent to the transfer of the applicable assets to such Subsequent Asset Purchaser, that for a period commencing on the date of such transfer and ending on the five year anniversary of the Closing Date, such Subsequent Asset Purchaser shall not, directly or indirectly (whether by itself, through an Affiliate, in partnership or conjunction with, or as an employee, officer, director, manager, member, owner, consultant or agent of, any other Person) and shall cause its Affiliates to not, directly or indirectly use any of such Non-Transferred Brainerd Assets in a manner that is competitive with the business of the Buyer and/or any of its Affiliates and its and their respective successors, assigns and transferees. (including as a member, agent, shareholder or investor of any Person or in any other capacityb) Notwithstanding Section 7.4(a), either alone or in conjunction with any other Person, none of the following activities shall constitute a violation of Section 7.4(a): (i) in any manner participate or engage in the ownershipadvertisement of job openings by use of newspapers, managementmagazines, operationthe internet and other media not directed at individual prospective employees, consultants, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), independent contractors; (ii) have the solicitation or hire of any direct Transferred Employee whose employment has been terminated by the Buyer after the Closing Date; provided, that any such terminated Transferred Employee was not terminated by the Buyer due to any action or indirect ownership interest in - 33 - inaction constituting cause (other such as gross misconduct, material violations of the policies of the Buyer and its Affiliates, or willful failure to perform the employee’s duties and responsibilities); or (iii) holding less than through 5% of the ownership of 10% or less outstanding securities of any class of any publicly-traded securities registered on of a recognized stock exchange company that is engaged in a Restricted Business. (c) Notwithstanding Section 7.4(a)(i) and Section 7.4(a)(iii), in the event of a Change of Control or dealer quotation system provided sale of all or substantially all of the applicable assets of the Seller or the Seller Parent to a Person does who is (i) not otherwise participate an Affiliate of the Seller Parent and (ii) engaged in the Restricted Business prior such acquisition, nothing shall prevent such Person from engaging in the activities of described in Section 7.4(a)(i) and Section 7.4(a)(iii) following such Personacquisition. (d) a Person that operates a Restricted Business Notwithstanding anything to the contrary set forth herein (including Section 13.10), in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each event of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this provisions of Section 11.05.7.4(a) (the “Restrictive Covenants”): (ci) For purposes the Buyer and its Affiliates shall have the right and remedy, without regard to any other available remedy, to (A) have the Restrictive Covenants specifically enforced by any court of this Section 11.05:competent jurisdiction and (B) have issued an injunction restraining any such breach without posting of a bond; it being understood that any breach of any of the Restrictive Covenants would cause irreparable and material Loss to the Buyer and its Affiliates, the amount of which cannot be readily determined and as to which neither Buyer nor any of its Affiliates will have any adequate remedy at law or in damages; (ii) it is the desire and intent of the parties hereto that the Restrictive Covenants be enforced to the fullest extent permissible under the Laws, Orders and public policies applied in each jurisdiction in which enforcement is sought and if any Restrictive Covenant shall be adjudicated finally to be invalid or unenforceable, such Restrictive Covenant shall be deemed amended to the extent necessary in order that such provision be valid and enforceable, the remainder of such Restrictive Covenant shall not thereby be affected and shall be given full effect without regard to invalid portions and such amendment shall apply only with respect to the operation of the Restrictive Covenant in the particular jurisdiction in which such adjudication is made; and (iii) the parties acknowledge and agree that the Restrictive Covenants are necessary for the protection and preservation of the value and the goodwill of the Business and the Buyer’s businesses and are reasonable and valid in geographical and temporal scope and in all other respects.

Appears in 2 contracts

Samples: Asset Purchase Agreement, Asset Purchase Agreement (Wausau Paper Corp.)

Non-Competition; Non-Solicitation. Unless the Majority Holders otherwise consent in writing, so long as any Founder or a Key Employee is a director, officer, employee, consultant or a direct or indirect holder of any Equity Securities of a Group Company and until the later of (a) During the Restrictive Periodconsummation of a Qualified IPO, Seller will or (b) two (2) years after he/she is no longer a director, officer, employee, consultant, or a direct or indirect holder of any Equity Securities of a Group Company, such Founder shall not, and the Company and such Founder shall cause its their respective Affiliates to notand each Key Employee not to, directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, indirectly: (i) own, manage, engage in, operate, control, work for, consult with, render services for, do business with, maintain any interest in any manner (proprietary, financial or otherwise) or participate or engage in the ownership, management, operation, operation or control of, formany business, acquirewhether in corporate, invest inproprietorship or partnership form or otherwise, financethat is related to the business or otherwise competes with the Group Companies’ business (each a “Restricted Business”); provided, ownhowever, operatethe restrictions contained in subsection (i) shall not restrict the acquisition by a Founder or a Key Employee, managedirectly or indirectly, join, assist, support, or provide products or services to or for, or provide financial or other assistance to of less than one percent (1%) of the outstanding share capital of any publicly traded company engaged in a Restricted Business in the Restricted Territory (as hereinafter defined), Business; (ii) have solicit any direct Person who is or indirect ownership interest in - 33 - (other than through has been at any time a customer of the ownership Group for the purpose of 10% offering to such customer goods or less services similar to or competing with those offered by any Group Company, or canvass or solicit any Person who is or has been at any time a supplier or licensor or customer of any class Group Company for the purpose of securities registered on a recognized stock exchange or dealer quotation system provided the applicable inducing any such Person does not otherwise participate in the activities of to terminate its business relationship with such Person) a Person that operates a Restricted Business in the Restricted Territory, Group Company; or (iii) knowingly permit such Seller's solicit or its Affiliate's name, including "The Pharm" entice away or any part, combination endeavor to solicit or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take entice away any tradedirector, clientsofficer, customers, business, consultant or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each employee of any Group Company. Each of the File Buy Stores, Seller shall not, Founders and shall ensure the Key Employees (to the extent he/she is a party to this Agreement) expressly agrees that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants limitations set forth in this Section 11.05. (c) For purposes 17.8 are reasonably tailored and reasonably necessary in light of the circumstances. Furthermore, if any provision of this Section 11.05:17.8 is more restrictive than permitted by the Laws of any jurisdiction in which a Party seeks enforcement thereof, then this Section 17.8 will be enforced to the greatest extent permitted by Law. Each of the undertakings contained in this Section 17.8 shall be enforceable by each of the Group Companies and the Investors separately and independently.

Appears in 2 contracts

Samples: Shareholder Agreement (DouYu International Holdings LTD), Shareholder Agreement (DouYu International Holdings LTD)

Non-Competition; Non-Solicitation. (a) During For a period of five years commencing on the Restrictive Closing Date (the “Restricted Period, Seller will not, and shall cause its Affiliates to not, directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall not, and shall ensure that none not permit any of its controlled Affiliates shallto, enter into directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business anywhere in the world; (ii) have a material interest in any sublease under nor make an assignment Person that engages directly or indirectly in the Restricted Business anywhere in the world in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between the Company and customers or suppliers of the Lease applicable Company. Notwithstanding the foregoing, Seller may (A) own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Seller is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own 5% or more of any class of securities of such Person, (B) continue to operate its retained businesses as such retained businesses have been conducted prior to and on the date of this Agreement, and (C) perform any services for Buyer or its Affiliates, including such services as are contemplated under the Transition Services Agreement. (b) For a period of 18 months commencing on the Closing Date, Seller shall not, and shall not permit any of its controlled Affiliates to, directly or indirectly, hire or solicit any employee of the Company or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a File Buy Store if general solicitation which is not directed specifically to any such sublease or assignment wouldemployees; provided, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth that nothing in this Section 11.055.07(b) shall prevent Seller or any of its controlled Affiliates from hiring (i) any employee whose employment has been terminated by the Company or Buyer or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee. (c) For During the Restricted Period, Seller shall not, and shall not permit any of its controlled Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Company or potential clients or customers of the Company for purposes of diverting their business or services from the Company. (d) Seller acknowledges that a breach or threatened breach of this Section 11.05:5.07 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Seller of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). (e) Seller acknowledges that the restrictions contained in this Section 5.07 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.07 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.07 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction. (f) Notwithstanding anything herein to the contrary, nothing in this Section 5.07 shall restrict Seller or any of its Affiliates from taking commercially reasonable steps to carry out its rights and obligations under any of the Transaction Documents.

Appears in 2 contracts

Samples: Unit Purchase Agreement (Ennis, Inc.), Unit Purchase Agreement (Ennis, Inc.)

Non-Competition; Non-Solicitation. (ai) During The Executive agrees that (A) during the Restrictive term of Executive’s employment with the Company and, (B) during the 12-month period following the termination of Executive’s employment with the Company for any reason (the “Non-Competition Period”) within the Restricted Territory, Seller will not, and the Executive shall cause its Affiliates to not, directly or indirectly indirectly, engage or participate in, prepare or set up, assist or have any interest in any person, partnership, corporation, firm, association or other business organization, entity or enterprise, whether as an officer, employee, director, partner, stockholder, consultant or otherwise, that engages in the Company’s Business. Notwithstanding the foregoing, (including x) the Executive shall not be precluded from purchasing or owning, directly or beneficially, as a memberpassive investment, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, two percent (i2%) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of publicly traded securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person if Executive does not otherwise actively participate in or control, directly or indirectly, any investment or other decisions with respect to such entity, and (y) if the activities Board terminates the Executive’s employment following the end of the Employment Period (for any reason other than a reason that would have constituted a Termination For Cause had such Persontermination of employment occurred during the Employment Period), then solely for purposes of this subparagraph 7(b)(i), the “Non-Competition Period” shall be the 3-month period following such termination of the Executive’s employment. (ii) a Person that operates a Restricted Business in During the Restricted TerritoryNon-Competition Period, the Executive shall not, directly or indirectly: (iii1) knowingly permit such Seller's offer to hire, divert, entice away, solicit or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce other manner persuade, or attempt to inducedo any of the foregoing (each, a “Solicitation”), for any person who is an officer, employee, consultant or board member of the Company or any Company Managed Fund to accept employment or an engagement with a third party or engage in a Solicitation with respect to any person or entity who is, or assist anyone else was, at any time within six months prior to induce the Solicitation, an officer, employee, agent or attempt consultant of the Company or any Company Managed Fund to induce, work for a third party engaged in the Company’s Business or to engage in any customer within of the Restricted Territory activities hereby prohibited with respect to reduce or discontinue its business or the Executive under this subparagraph 7(b)(ii); (2) solicit, divert, take awayentice away or in any other manner persuade, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of do any of the restrictive covenants set forth foregoing, on (1) any actual or prospective customer of or investor in this Section 11.05.the Company or any Company Managed Fund to become a customer of or investor in any third party engaged in the Company’s Business or (2) any customer or investor to cease doing business with the Company or any Company Managed Fund; or (c3) For purposes make any statements or perform any acts intended to advance the interest of this Section 11.05:any person engaged in or proposing to engage in the Company’s Business in any way that is intended to injure the interests of the Company or any Company Managed Fund.

Appears in 2 contracts

Samples: Employment Agreement (AGNC Investment Corp.), Employment Agreement (AGNC Investment Corp.)

Non-Competition; Non-Solicitation. (ai) Each Class B Member, Class C Member, Class D Member (collectively, the “Non-Compete Parties”) acknowledges that, as a result of such Member’s affiliation with the Company, such Member will be provided and become familiar with the trade secrets and other confidential information of the Company and its Affiliates and has significantly and uniquely contributed to the development and maintenance of the goodwill of the Company and its Affiliates throughout North America or in any state, province and/or country where the Company or its subsidiaries are doing business at the time in question (the “Territory”). Each Non-Compete Party further acknowledges and agrees that the Company and its Affiliates currently operate and are reasonably expected to operate within the Territory. Therefore, each Non-Compete Party agrees that during the period such Non-Compete Party or any of his/its Affiliates is a Member of the Company and for a period of two (2) years thereafter, each Non-Compete Party shall not, and each Non-Compete Party shall cause its Affiliates not to, directly or indirectly, own, operate, lease, manage, 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 the Company and its subsidiaries and the Ranger IPO Entities in any manner in the business of (x) providing workover rigs well services and/or rental equipment associated with well services or workover rigs, or (y) any other lines of business the Ranger IPO Entities, the Company or its subsidiaries is participating in, or has taken substantive steps towards participating in, as of the last date the Non-Compete Party or any of his/its Affiliates is a Member of the Company, in each case for the oil and gas industry anywhere in the Territory (collectively, a “Competing Business”); provided, however, that (A) the passive beneficial ownership by a Member of less than two percent (2%) of the outstanding publicly traded equity securities of any Competing Business; (B) the ownership by a Member of any Entity or business of which less than five percent (5%) of the annual revenues constitute a Competing Business; and (C) the consummation of a Competing Business Acquisition by an Acquiring Party following compliance with Sections 3.18(c) and 3.18(d) (or any acquisition not subject to the terms of Sections 3.18(c) and 3.18(d)), will not be deemed to be a breach of this Section 3.12(b)(i). (ii) During the Restrictive Periodperiod such Non-Compete Party or any of his/its Affiliates is a Member of the Company and for a period of two (2) years thereafter, Seller will without the consent of the Company (subject to Approval by a Supermajority of the Board), a Non-Compete Party shall not, and shall cause his/its Affiliates to notnot to, anywhere in the Territory: (A) directly or indirectly indirectly, hire, engage, or solicit (including or attempt any of the foregoing) for employment (or engagement as a memberconsultant) any person who is employed (or engaged as a consultant) by any of the Ranger IPO Entities, agent, shareholder the Company or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operationits subsidiaries, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, encourage or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induceencourage or induce any such employee or consultant to leave such employment or engagement (provided that this subsection (A) shall not limit general advertising not directed at any of the Ranger IPO Entities, the Company or assist anyone else to its subsidiaries or any such restricted current or former employee or consultant); (B) encourage or induce or attempt to induceencourage or induce any Person who is a customer, supplier, vendor, licensee, licensor, franchisee, or other business relation of any customer within Member, the Restricted Territory Company, their Affiliates or the Ranger IPO Entities to reduce or discontinue its cease doing business or solicitmodify the way it does business with any of the Ranger IPO Entities, divert, take awaythe Company or its subsidiaries, or attempt to solicitin any way interfere with or otherwise affect the relationship between any such customer, divertsupplier, licensee, licensor, franchisee, or take away business relation and any tradeof the Ranger IPO Entities, clients, customers, business, the Company or goodwill its Affiliates; or otherwise compete (C) solicit any Person described in subsection (B) for accounts or personnel within the Restricted Territory;any Competing Business. (biii) With respect If, at the time of enforcement of this Section 3.12(b), a court or other tribunal shall hold that the duration, geography or scope restrictions stated herein are unreasonable under circumstances then existing, the parties hereto agree that the maximum duration, geography or scope reasonable under such circumstances shall be substituted for the stated duration, geography or scope and that the court or other tribunal shall reform the restrictions contained herein to each cover the maximum duration, geography and scope permitted by law. (iv) If any Non-Compete Party breaches any provision of this Section 3.12(b), such Member agrees and acknowledges that the File Buy Stores, Seller time periods set forth herein shall not, and be extended by the time period of such breach. (v) Nothing in this Section 3.12(b) shall ensure that none abrogate any other non-competition agreement to which the Company or any of its Affiliates shall, enter into and any sublease under nor make an assignment of the Lease applicable to Non-Compete Party is a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this Section 11.05party. (cvi) For purposes of Notwithstanding anything contained herein to the contrary, in no event shall this Section 11.05:3.12(b) restrict the Ranger IPO Entities from taking any action that would otherwise be prohibited by this Section 3.12(b).

Appears in 2 contracts

Samples: Limited Liability Company Agreement (Ranger Energy Services, Inc.), Limited Liability Company Agreement (Ranger Energy Services, Inc.)

Non-Competition; Non-Solicitation. As a material inducement to the Company to enter into this Agreement, Executive hereby expressly agrees to be bound by the following covenants, terms and conditions. Executive hereby agrees that he will have access to trade secrets, proprietary and confidential information relating to the Company and its affiliates and their respective clients, including but not limited to, marketing data, financial information, client and prospect lists (including without limitation, computer- and web-based compilations (including but not limited to xxxxxxxxxx.xxx or other CRM system data) maintained by the Company or its affiliates or Executive), and details of programs and methods, potential and actual acquisitions, divestitures and joint ventures, pricing policies, strategies, terms of service, business and product plans, cost information and software, in each case of the Company, its affiliates and/or their respective clients. Accordingly, Executive voluntarily enters into the following covenants to provide the Company with reasonable protection of those interests: (a) During Executive agrees that during the Restrictive Periodterm of his employment with the Company and for a period of one year thereafter, Seller will Executive shall not, and shall cause its Affiliates to notalone or as an employee, directly or indirectly (including as a memberofficer, director, agent, shareholder (other than an owner of 2% or investor less of the outstanding shares of any Person publicly-traded company), consultant, partner, member, owner or in any other capacity), either alone directly or in conjunction with any other Person, indirectly: (i) engage in any manner participate Competitive Activity (as defined below) within or engage with respect to any location in the ownershipUnited States or abroad in which Executive performed or directed his services (including but not limited to sales and customer support calls, managementwhether conducted in person, operationby telephone or online) at any time during the 12-month period immediately preceding the termination of Executive’s employment for any reason (the “Territories”), or control of, form, acquire, invest assist any other person or organization in engaging in, financeor preparing to engage in, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business any Competitive Activity in the Restricted Territory (as hereinafter defined), such Territories; (ii) have solicit or provide services to any direct Clients, as defined below, of the Company and/or any of its affiliates, on his own behalf or indirect ownership interest in - 33 - (other than through the ownership of 10% or less on behalf of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Personthird party, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach furtherance of any of the restrictive covenants set forth in this Section 11.05. (c) Competitive Activity. For purposes of this Section 11.05:6, “Client” shall mean any then-current customer of the Company and any former customer of the Company who was a customer of the Company within the 12-month period immediately preceding the termination of Executive’s employment hereunder; (iii) encourage, participate in or solicit any employee or consultant of the Company and/or any affiliate to engage in Competitive Activity or to accept employment by or engagement with any third party, whether or not engaged in Competitive Activity. This subsection (iii) shall be limited to employees and consultants who: (A) are current employees or consultants; or (B) left the employment of the Company or whose provision of services to the Company terminated within the 12-month period prior to Executive’s termination of employment with the Company for any reason; and (iv) for purposes of this Agreement, “Competitive Activity” shall mean any offering, sale, licensing or provision by any entity of any software, application service or system, in direct competition with the Company’s current or currently contemplated offerings and including, without limitation, electronic or digital document repositories for inter-enterprise exchanges designed to facilitate transactional due diligence, mergers, acquisitions, file synchronization and sharing, outside the firewall sharing and collaboration, divestitures, financings, investments, investor relations, research and development, clinical trials or other business processes for which the Company’s products or services are or have been used during the 12-month period preceding termination of Executive’s employment for any reason.

Appears in 2 contracts

Samples: Employment Agreement (IntraLinks Holdings, Inc.), Employment Agreement (IntraLinks Holdings, Inc.)

Non-Competition; Non-Solicitation. (a) During In order for the Restrictive Period, Seller will notBuyer to have and enjoy the full benefit of the businesses of the Company and each of its Subsidiaries, and as a material inducement to the Buyer to enter into this Agreement (without such inducement the Buyer would not have entered into this Agreement), for a period of the later of (x) five years commencing on the Closing Date (subject to any expressed limitations or exceptions to this Section 7.4 set forth in the applicable Employment Agreement and (y) twelve months from the date of voluntary or involuntary termination of such Person’s employment with the Company and its Subsidiaries, each Founder (each a “Restricted Person”) shall cause its Affiliates to not, directly or indirectly (including whether individually, as a an employee, officer, director, manager, member, agentpartner, shareholder owner, consultant, advisor or investor agent of any Person business, or in any other capacity)): (i) undertake, either alone participate or carry on or be engaged or have any financial or other interest in, or in conjunction with any other manner advise or assist any other Person, nor take any steps in anticipation thereof, in connection with the operation of, a Competing Business anywhere in the world; provided that two or more of the Founders shall not collectively violate this Section 7.4(a)(i) until the later of the period set forth in clause (ia)(x) in any manner participate Section 7.4 and twenty-four months from the date of voluntary or engage in involuntary termination of such Person’s employment with the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), Company and its Subsidiaries; (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such PersonA) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divertentice, take awayencourage or intentionally influence, or attempt to solicit, divertentice, encourage or influence, any employee who at such time or in the immediately preceding twelve months was (1) a Covered Employee of the Buyer, the Company or any of their respective Affiliates or (2) a vendor who worked on or with the “ABSolute” database, to resign or leave the employ of the Buyer, the Company or any of their respective Affiliates or otherwise hire, employ, engage or contract any such employee or vendor to perform services other than for the benefit of the Buyer, the Company or any of their respective Affiliates or (B) interfere with any relationship between a vendor or service provider and the Buyer, the Company or any of their respective Affiliates; provided that two or more of the Founders shall not collectively violate this Section 7.4(a)(ii) until the later of the period set forth in clause (a)(x) above and twenty-four months from the date of voluntary or involuntary termination of such Person’s employment with the Company and its Subsidiaries; provided further that a general solicitation through advertisements or other means not targeted to such a Person shall not be deemed a violation of the non-solicitation restrictions of this provision; or (iii) solicit, entice, encourage, influence accept payment from, or take away attempt to solicit, entice, encourage, influence or accept payment from, any tradeclient of the Buyer, clientsthe Company or any of their respective Affiliates (including any Person who has been a client of the Company or any of its Subsidiaries at any time during the period of one year before the Closing) to reduce or terminate its business relationship with the Buyer, customers, business, the Company or goodwill any of their respective Affiliates for the direct or otherwise compete for accounts indirect benefit of any Competing Business; provided that two or personnel within more of the Restricted Territory;Founders shall not collectively violate this Section 7.4(a)(iii) until the later of the period set forth in clause (a)(x) above and twenty-four months from the date of voluntary or involuntary termination of such Person’s employment with the Company and its Subsidiaries; provided further that a general solicitation through advertisements or other means not targeted to such a Person shall not be deemed a violation of the non-solicitation restrictions of this provision. (b) With respect In order for the Buyer to have and enjoy the full benefit of the businesses of the Company and each of its Subsidiaries, and as a material inducement to the File Buy StoresBuyer to enter into this Agreement (without such inducement the Buyer would not have entered into this Agreement), (i) for a period of one year commencing on the Closing Date, each Seller who is not a Founder (each a “Non-Founder Restricted Person”) shall not, directly or indirectly (whether individually, as an employee, officer, director, manager, member, partner, owner, consultant, advisor or agent of any business, or in any other capacity) undertake, participate or carry on or be engaged or have any financial or other interest in, or in any other manner advise or assist any other Person, nor take any steps in anticipation thereof, in connection with the operation of, a Competing Business anywhere in the world (except to the extent that such Non-Founder Restricted Person is as of the date of this Agreement a director of a Fund Management Company regulated by the Swiss Financial Market Supervisory Authority, then the restrictions included in this clause (i) shall not apply as long as the rules and regulations applicable to directors of such Fund Management Company are in conflict with the restrictions included in this clause (i)) and (ii) for a period of one year from the date of voluntary or involuntary termination of such Non-Founder Restricted Person’s employment with the Company and its Subsidiaries, each Non-Founder Restricted Person shall ensure that none not (x) solicit, entice, encourage or intentionally influence, or attempt to solicit, entice, encourage or influence, any employee who at such time or in the immediately preceding twelve months was (1) a Covered Employee of the Buyer, the Company or any of their respective Affiliates or (2) a vendor who worked on or with the “ABSolute” database, to resign or leave the employ of the Buyer, the Company or any of their respective Affiliates or otherwise hire, employ, engage or contract any such employee or vendor to perform services other than for the benefit of the Buyer, the Company or any of their respective Affiliates or (y) interfere with any relationship between a vendor or service provider and the Buyer, the Company or any of their respective Affiliates or (z) solicit, entice, encourage, influence accept payment from, or attempt to solicit, entice, encourage, influence or accept payment from, any client of the Buyer, the Company or any of their respective Affiliates (including any Person who has been a client of the Company or any of its Subsidiaries at any time during the period of one year before the Closing) to reduce or terminate its business relationship with the Buyer, the Company or any of their respective Affiliates shall, for the direct or indirect benefit of any Competing Business; provided that a general solicitation through advertisements or other means not targeted to such a Person shall not be deemed a violation of the non-solicitation restrictions of this provision. (c) As a material inducement to the Sellers and the Company to enter into any sublease under nor make an assignment this Agreement (without such inducement the Sellers and the Company would not have entered into this Agreement), for a period of one year from the date of voluntary or involuntary withdrawal of the Lease Buyer as a member of the Company and its Subsidiaries, the Buyer shall not solicit, entice, encourage or intentionally influence, or attempt to solicit, entice, encourage or influence, any employee who at such time or in the immediately preceding twelve months was (1) a Covered Employee of the Buyer, the Company or any of their respective Affiliates or (2) a vendor who worked on or with the “ABSolute” database, to resign or leave the employ of the Buyer, the Company or any of their respective Affiliates or otherwise hire, employ, engage or contract any such employee or vendor to perform services other than for the benefit of the Buyer, the Company or any of their respective Affiliates; provided that a general solicitation through advertisements or other means not targeted to such a Person shall not be deemed a violation of the non-solicitation restrictions of this provision. (d) Notwithstanding Section 7.4(a), Section 7.4(b) and Section 7.4(c), it shall not constitute a violation of such Sections if a Restricted Person or Non-Founder Restricted Person holds less than 5% of the outstanding securities of any class of any publicly-traded securities of a company that is engaged in a Competing Business. (e) During any period after the Closing during which a Seller is employed by, or performing services on behalf of, the Company (including any applicable notice period prior to any termination thereof), in no event shall any investments be managed, directly or indirectly, by such Seller other than on behalf of the Company or an entity that is controlled by the Company, except for Personal Investments; provided that, to the extent that such Seller is as of the date of this Agreement a director of a Fund Management Company regulated by the Swiss Financial Market Supervisory Authority, then the restrictions included in this clause (e) shall not apply as long as the rules and regulations applicable to a File Buy Store if directors of such sublease Fund Management Company are in conflict with the restrictions included in this clause (e). For the avoidance of doubt, nothing in this Section 7.4(e) shall restrict any Seller from making or assignment wouldmanaging any Personal Investments. (f) Notwithstanding anything to the contrary set forth herein (including Section 12.8), or could reasonably be expected to, result in the event of a breach of any of the restrictive covenants set forth in this provisions of Section 11.05.7.4(a), Section 7.4(b) and Section 7.4(c) (the “Restrictive Covenants”): (ci) For purposes the Buyer and its Affiliates (including the Company and each of this Section 11.05:its Subsidiaries) shall have the right and remedy to seek, without regard to any other available remedy, to have (A) the Restrictive Covenants specifically enforced by any court of competent jurisdiction, and (B) issued an injunction restraining any such breach without posting of a bond; it being understood that any breach of any of the Restrictive Covenants would cause irreparable and material Loss to the Buyer and its Affiliates (including the Company and each of its Subsidiaries), the amount of which cannot be readily determined and as to which neither Buyer nor any of its Affiliates (including the Company and each of its Subsidiaries) will have any adequate remedy at law or in damages; (ii) it is the desire and intent of the parties hereto that the Restrictive Covenants be enforced to the fullest extent permissible under the Laws, Orders and public policies applied in each jurisdiction in which enforcement is sought and if any Restrictive Covenant shall be adjudicated finally to be invalid or unenforceable, such Restrictive Covenant shall be deemed amended to the extent necessary in order that such provision be valid and enforceable, the remainder of such Restrictive Covenant shall not thereby be affected and shall be given full effect without regard to invalid portions and such amendment shall apply only with respect to the operation of the Restrictive Covenant in the particular jurisdiction in which such adjudication is made; and (iii) the parties acknowledge and agree that the Restrictive Covenants are necessary for the protection and preservation of the value and the goodwill of the Buyer’s, the Company’s and each of its Subsidiaries’ businesses and are reasonable and valid in geographical and temporal scope and in all other respects.

Appears in 2 contracts

Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Evercore Partners Inc.)

Non-Competition; Non-Solicitation. (a) During the Restrictive Term (the “Non-Compete Period”), Seller Executive will not, and shall cause its Affiliates to not, directly or indirectly indirectly, engage, anywhere in the Restricted Area (including as defined below), whether such engagement be as an individual, officer, director, proprietor, employee, partner, member, investor (other than solely as a memberholder of less than two percent (2%) of the outstanding capital stock of a corporation whose shares are publicly traded on a national securities exchange or through a national market system or registered pursuant to Section 12(g) of the Securities Exchange Act of 1934, agent, shareholder or investor of any Person or in any other capacityas amended), either alone creditor, consultant, advisor, sales representative, agent or other participant, in conjunction a Restricted Business (as defined herein). (b) For a period of time equal to the Non-Compete Period plus the greater of (i) any period that Executive is entitled to receive Base Salary and Continued Benefits under the Employment Agreement, or (ii) one year commencing as of the Termination Date, unless the Employment Agreement is terminated by the Company without Cause or Executive resigns with any other PersonGood Reason, in each case, for a period of time equal to the Term plus the period during which the Company continues to pay Executive her Base Salary and Continued Benefits pursuant to Section 7 of the Employment Agreement, whenever the same shall occur and for whatever reason, Executive shall not, directly or indirectly, (i) in cause, solicit, induce or encourage (each, a “Solicitation”) any manner participate person who is or engage in was, prior to such Solicitation, an employee of the ownership, management, operationCompany or any of its subsidiaries to leave employment with the Company or any of its subsidiaries, or control ofhire, form, acquire, invest in, finance, own, operate, manage, join, assist, support, employ or provide products otherwise engage any such individual; or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have cause, induce or encourage any direct material actual or indirect ownership interest in - 33 - prospective client, customer, supplier or licensor of the Company or any of its subsidiaries (other than through including any former customer of the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's Company or its Affiliate's name, including "The Pharm" subsidiaries and any person that becomes a customer of the Company or any part, combination of its subsidiaries) or derivation thereofany other person who has a material business relationship with the Company or any of its subsidiaries, to be used in connection with terminate or otherwise knowingly lend assistance (financial modify any such actual or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this Section 11.05prospective relationship. (c) For purposes of this Section 11.05:

Appears in 2 contracts

Samples: Employment Agreement (Reliant Software, Inc.), Employment Agreement (Community Choice Financial Inc.)

Non-Competition; Non-Solicitation. (aA) During For a period commencing on the Restrictive PeriodClosing Date and ending on the second anniversary of the Closing Date, Seller will not, and shall cause its Affiliates to notneither the Company nor any of the Shareholders shall, directly or indirectly (including as a memberindirectly, agent, shareholder or investor of any Person or engage in any capacity in any Internet Web hosting business in any state in the United States or throughout the world which is similar to and/or in competition with the Business or the business of Buyer or Parent or their respective affiliates. (B) The Company and the Shareholders understand that pursuant to this Agreement they have received confidential and proprietary information of Buyer and Parent, including, without limitation, information contained in the Offering and other capacity)trade secrets. Neither the Company nor the Shareholders, either alone nor any of its officers, directors, employees, agents (C) For a period commencing on the Closing Date and ending on the second anniversary of the Closing Date, neither the Company, nor any of the Shareholders, unless acting with the express written consent of the Buyer or in conjunction with any other PersonParent, will, directly or indirectly, interfere with, solicit or endeavor to entice away: (i) any person who was an employee, subcontractor or consultant of the Company, the Buyer, the Parent or any of their affiliates during the twelve months immediately preceding the date of such solicitation, interference or endeavor, (ii) with respect to any Internet Web hosting business similar to or in competition with the Business in which the Company, Buyer, Parent, or any manner participate of their affiliates is or engage has been engaged on or after the date of this Agreement (and in the ownershipcase of Chunx xxxy, managementand during the "Agreement Term" as defined in his Employment Agreement with Buyer), operationany person or entity who was or is a customer or client of the Company or of the Buyer or of the Parent, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, supporttheir respective affiliates, or provide products any person or services to entity who requested or forreceived a proposal from Buyer, Parent or the Company, or provide financial or other assistance to a Restricted Business in the Restricted Territory their respective affiliates. THE COMPANY AND THE SHAREHOLDERS, AND EACH OF THEM, EXPRESSLY ACKNOWLEDGES, UNDERSTANDS AND AGREES (as hereinafter defined)i) THAT REMEDIES AT LAW FOR ANY BREACH OF THIS ARTICLE II, SECTION 1 WILL BE INADEQUATE, (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, THAT THE DAMAGES RESULTING FROM SUCH BREACH ARE NOT READILY SUSCEPTIBLE TO MEASUREMENT IN MONETARY TERMS AND (iii) knowingly permit such Seller's or its Affiliate's nameTHAT BUYER AND/OR PARENT SHALL BE ENTITLED TO IMMEDIATE INJUNCTIVE RELIEF AND MAY OBTAIN TEMPORARY AND PERMANENT ORDERS RESTRAINING ANY THREATENED OR FURTHER BREACH OF THIS ARTICLE II, including "The Pharm" or any partSECTION 1 BY THE COMPANY AND/OR THE SHAREHOLDERS. THE COMPANY AND THE SHAREHOLDERS HAVE BEEN ADVISED BY THEIR RESPECTIVE COUNSEL WITH RESPECT TO THE MEANING AND EFFECT OF THIS ARTICLE II, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this Section 11.05SECTION 1. (c) For purposes of this Section 11.05:

Appears in 2 contracts

Samples: Asset Purchase Agreement (Interliant Inc), Asset Purchase Agreement (Interliant Inc)

Non-Competition; Non-Solicitation. (a) During For a period of three (3) years commencing on the Restrictive Closing Date (the “Restricted Period”), neither any Seller will notnor Xxxxx or Xxxxx (each, a “Restricted Party” and collectively, the “Restricted Parties”) shall cause its Affiliates to not, directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Personindirectly, (i) in any manner participate or engage in or assist others in engaging in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), Territory; (ii) have any direct or indirect ownership an interest in - 33 - any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) cause, induce or solicit any material actual or prospective franchise, supplier or licensor of the Business (including any existing or former franchise of any Seller and any Person that becomes a franchise of the Business after the Closing), or any other than through Person who has a material business relationship with the ownership Business, to terminate or adversely modify any such actual or prospective relationship. Notwithstanding the foregoing, (i) the Sellers or Xxxxx or Xxxxx may own, directly or indirectly, solely as an investment, securities of 10% any Person if such Seller, directly or indirectly, owns five percent (5%) or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such PersonPerson and (ii) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;as set forth on Schedule 6.7(a). (b) With respect During the Restricted Period, no Restricted Party shall, directly or indirectly, hire or solicit any person who is offered employment by Buyer pursuant to each of Section 6.5(b) or is or was employed in the File Buy StoresBusiness within the prior twelve (12) months, or encourage any such employee to leave such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 6.7(b) shall prevent any Seller shall not, and shall ensure that none or any of its Affiliates shallfrom soliciting or hiring (i) any employee whose employment has been terminated by Buyer or (ii) after 12 months from the date of termination of employment, enter into any sublease under nor make an assignment of employee whose employment has been terminated by the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this Section 11.05employee. (c) For purposes The Restricted Parties acknowledge that a breach or threatened breach of this Section 11.05:6.7 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by any Seller of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to seek equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond, subject to applicable Law). (d) The Restricted Parties acknowledge that the restrictions contained in this Section 6.7 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 6.7 should ever be adjudicated to exceed the time, geographic, product or service or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service or other limitations permitted by applicable Law. The covenants contained in this Section 6.7 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction. Nothing contained in this Section 6.7 applies to, or limits, the manner in which work is performed by Sellers for Buyer after Closing.

Appears in 2 contracts

Samples: Asset Purchase Agreement, Asset Purchase Agreement (Red Lion Hotels CORP)

Non-Competition; Non-Solicitation. (a) During For the Restrictive two (2) year period immediately following the Closing Date (the “Restricted Period”), Seller will not, no Restricted Party shall and no Restricted Party shall cause permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in research or development activities relating to the development of drug or biologic therapies to reprogram the functionality of myeloid derived suppressor cells (the “Restricted Business”) anywhere in the world (the Territory”); (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, director, member, manager, employee, principal, agent, trustee, lender or consultant; or (iii) cause, induce, or encourage any material actual or prospective client, customer, supplier, or licensor of the Business (including any existing or former client or customer of Seller 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. Notwithstanding the foregoing, a Restricted Party may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if such Restricted Party is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly indirectly, own five percent (including as a member, agent, shareholder 5%) or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;. (b) With respect to each of During the File Buy StoresRestricted Period, Seller no Restricted Party shall not, and no Restricted Party shall ensure that none permit any of its Affiliates shallto, enter into directly or indirectly, hire or solicit any sublease under nor make an assignment of person who is or was employed in the Lease applicable Business during the Restricted Period, or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a File Buy Store if general solicitation which is not directed specifically to any such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth employees; provided that nothing in this Section 11.055.02(b) shall prevent the Restricted Parties or any of their Affiliates from hiring (i) any employee whose employment has been terminated by Buyer; or (ii) after one hundred eighty (180) days from the date of termination of employment, any employee whose employment has been terminated by the employee. (c) For purposes Each Restricted Party acknowledges that a breach or threatened breach of this Section 11.05:6.02 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by a Restricted Party of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). (d) Each Restricted Party acknowledges that the restrictions contained in this Section 6.02 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 6.02 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction or any Governmental Order, then any court is expressly empowered to reform such covenant in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law or such Governmental Order. The covenants contained in this Section 6.02 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 2 contracts

Samples: Asset Purchase Agreement (Kintara Therapeutics, Inc.), Asset Purchase Agreement (CohBar, Inc.)

Non-Competition; Non-Solicitation. (a) During the Restrictive course of Grantee’s employment with, or service to, Chloe or any of its Subsidiaries (the “Employment Term”) and for a period of twelve (12) months following the date on which Grantee ceases to be employed by or provide services to Chloe or any of its Subsidiaries (the “Restricted Period”), Seller will notGrantee agrees not to, and shall cause its Grantee’s Affiliates to not, directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity)not to, either alone or in conjunction with any other PersonGrantee’s Affiliates, (i) in any manner participate directly or engage in the ownershipindirectly own, management, operation, or control of, form, acquire, invest in, finance, ownmanage, operate, managecontrol, joinbe employed by (whether as an employee, assistconsultant, supportindependent contractor or otherwise, and whether or not for compensation) or render services to any Person, in whatever form, engaged in the business of furnishing or providing home health assessments and delivering care management services to patients in their homes (the “Restricted Business”) in the United States. Notwithstanding the foregoing, Grantee may directly or indirectly own, solely as an investment, securities of any Person traded on any national securities exchange, provided that Grantee is not a controlling Person of, or provide products a member of a group which controls, such Person and does not, directly or services to indirectly, own five percent (5%) or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person. (b) a Person that operates a Restricted Business in During the Restricted TerritoryPeriod Grantee agrees not to, (iii) knowingly permit such Seller's and shall cause Grantee’s Affiliates not to, either alone or its Affiliate's namein conjunction with Grantee’s Affiliates, including "The Pharm" directly or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) indirectly induce or attempt to induceinduce any C-level executive officer of Chloe or any of its Subsidiaries (each, a “Senior Restricted Employee”) or any employee of Chloe or any of its Subsidiaries that is not a Senior Restricted Employee (each, a “Restricted Employee”) to leave the employ or service of Chloe or any of its Subsidiaries, hire any Senior Restricted Employee or Restricted Employee, or assist anyone else to induce in any way interfere with the employee relationship between Chloe or attempt to induce, any customer within of its Subsidiaries and any such Senior Restricted Employee or Restricted Employee. (c) During the Employment Term and the Restricted Territory to reduce or discontinue its business or solicitPeriod, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller Grantee shall not, and shall ensure that none cause Grantee’s Affiliates not to, either alone or in conjunction with Grantee’s Affiliates, directly or indirectly, (i) solicit or service, or assist in soliciting or servicing the business of any then current client or prospective supplier, licensee, licensor or other business relation of Chloe or any of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable Subsidiaries in a manner which (x) induces such Person to a File Buy Store if such sublease or assignment wouldcease doing business with, or could reasonably be expected to(y) reduces the amount of business conducted with, result Chloe or its Subsidiaries, or (ii) in a breach any way interferes with the relationship between any then current or prospective client, supplier, licensee, licensor or other business relation of Chloe or any of its Subsidiaries: (A) with whom Grantee had personal contact or dealings on behalf of Chloe or any of its Subsidiaries during the one-year period immediately preceding Grantee’s termination of employment; (B) about whom Grantee had knowledge of any of Chloe’s or any of its Subsidiaries’ plans with respect to such Person; (C) with whom employees reporting to Grantee have had personal contact or dealings on behalf of Chloe or any of its Subsidiaries during the restrictive one-year period immediately preceding Grantee’s termination of employment; or (D) for whom Grantee had direct or indirect responsibility during the one-year period immediately preceding Grantee’s termination of employment. (d) Grantee acknowledges and agrees that the length of the covenants set forth in this Section 11.051 are reasonable and narrowly drawn to impose no greater restraint than is necessary to protect the goodwill of Chloe and its respective Subsidiaries. (c) For purposes of this Section 11.05:

Appears in 2 contracts

Samples: Incentive Unit Award and Contribution Agreement (Signify Health, Inc.), Incentive Unit Award Agreement (Signify Health, Inc.)

Non-Competition; Non-Solicitation. (a) During For a period of three years commencing on the Restrictive Closing Date (the “Restricted Period, Seller will not, and shall cause its Affiliates to not, directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall not, and shall ensure that none not permit any of its Affiliates shall(excluding, enter into for purposes of this Section 4.07, any sublease under nor make an assignment historical employees of the Lease applicable Company or its Subsidiaries) to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between the Company, any Subsidiary and customers or suppliers of the Company or any Subsidiary. Notwithstanding the foregoing, Seller may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Seller is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own 5% or more of any class of securities of such Person. (b) During the Restricted Period, Seller shall not, and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of the Company or any Subsidiary or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a File Buy Store if general solicitation which is not directed specifically to any such sublease or assignment wouldemployees; provided, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth that nothing in this Section 11.054.07(b) shall prevent Seller or any of its Affiliates from hiring (i) any employee whose employment has been terminated by the Company, any Subsidiary or Buyer or (ii) after 120 days from the date of termination of employment, any employee whose employment has been terminated by the employee. (c) For During the Restricted Period, Seller shall not, and shall not permit any of its Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Company or any Subsidiary or potential clients or customers of the Company or any Subsidiary for purposes of diverting their business or services from the Company or any Subsidiary. (d) Seller acknowledges that a breach or threatened breach of this Section 11.05:4.07 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Seller of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). (e) Seller acknowledges that the restrictions contained in this Section 4.07 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and complete the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 4.07 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 4.07 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 2 contracts

Samples: Stock Purchase Agreement (Lithia Motors Inc), Stock Purchase Agreement (Lithia Motors Inc)

Non-Competition; Non-Solicitation. As a material inducement to the Company to enter into this Agreement, Executive hereby expressly agrees to be bound by the following covenants, terms and conditions. Executive hereby agrees that he will have access to trade secrets, proprietary and confidential information relating to the Company and its affiliates and their respective clients, including but not limited to, marketing data, financial information, client and prospect lists (including without limitation, computer- and web-based compilations (including but not limited to xxxxxxxxxx.xxx or other CRM system data) maintained by the Company or its affiliates or Executive), and details of programs and methods, potential and actual acquisitions, divestitures and joint ventures, pricing policies, strategies, terms of service, business and product plans, cost information and software, in each case of the Company, its affiliates and/or their respective clients. Accordingly, Executive voluntarily enters into the following covenants to provide the Company with reasonable protection of those interests: (a) During Executive agrees that during the Restrictive Periodterm of his employment with the Company and for a period of one year thereafter, Seller will Executive shall not, and shall cause its Affiliates to notalone or as an employee, directly or indirectly (including as a memberofficer, director, agent, shareholder (other than an owner of 2% or investor less of the outstanding shares of any Person publicly-traded company), consultant, partner, member, owner or in any other capacity), either alone directly or in conjunction with any other Person, indirectly: (i) engage in any manner participate Competitive Activity (as defined below) within or engage with respect to any location in the ownershipUnited States or abroad in which Executive performed or directed his services (including but not limited to sales and customer support calls, managementwhether conducted in person, operationby telephone or online) at any time during the 12-month period immediately preceding the termination of Executive’s employment for any reason (the “Territories”), or control of, form, acquire, invest assist any other person or organization in engaging in, financeor preparing to engage in, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business any Competitive Activity in the Restricted Territory (as hereinafter defined), such Territories; (ii) have solicit or provide services to any direct Clients, as defined below, of the Company and/or any of its affiliates, on his own behalf or indirect ownership interest in - 33 - (other than through the ownership of 10% or less on behalf of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Personthird party, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach furtherance of any of the restrictive covenants set forth in this Section 11.05. (c) Competitive Activity. For purposes of this Section 11.05:6, “Client” shall mean any then-current customer of the Company and any former customer of the Company who was a customer of the Company within the 12-month period immediately preceding the termination of Executive’s employment hereunder; (iii) encourage, participate in or solicit any employee or consultant of the Company and/or any affiliate to engage in Competitive Activity or to accept employment by or engagement with any third party, whether or not engaged in Competitive Activity. This subsection (iii) shall be limited to employees and consultants who: (A) are current employees or consultants; or (B) left the employment of the Company or whose provision of services to the Company terminated within the 12-month period prior to Executive’s termination of employment with the Company for any reason; and (iv) for purposes of this Agreement, “Competitive Activity” shall mean any offering, sale, licensing or provision by any entity of any software, application service or system, in direct competition with the Company’s current or currently contemplated offerings and including, without limitation, electronic or digital document repositories for inter-enterprise exchanges designed to facilitate transactional due diligence, mergers, acquisitions, divestitures, financings, investments, investor relations, research and development, clinical trials or other business processes for which the Company’s products or services are or have been used during the 12-month period preceding termination of Executive’s employment for any reason.

Appears in 1 contract

Samples: Employment Agreement

Non-Competition; Non-Solicitation. (a) During the Restrictive Xxxxxxxxx Restricted Period, Seller will Xxxxx Xxxxxxxxx, shall not, and during the S&M Restricted Period, Xxxxx Xxxxxxxx and Xxxx Xxxxxxx shall not, and shall use reasonable efforts to cause its their Affiliates to not, directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), Territory; (ii) have any direct or indirect ownership an interest in - 33 - any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, owner, employee, principal, agent, trustee, advisor, or consultant; or (other than through iii) intentionally interfere in any material respect with the ownership business relationships (whether formed prior to or after the date of 10this Agreement) between the Company and customers or suppliers of the Company, except in each case, in the good faith performance of the Restricted Persons’ duties and responsibilities to the Company. Notwithstanding the foregoing, the Restricted Persons may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if the Restricted Persons are not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own 2% or less more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;. (b) With respect to each During the Xxxxxxxxx Restricted Period, Xxxxx Xxxxxxxxx shall not and during the S&M Restricted Period, Xxxxx Xxxxxxxx and Xxxx Xxxxxxx shall not, directly or indirectly, hire or solicit any employee of the File Buy StoresCompany or encourage any such employee to leave such employment or hire any such employee who has left such employment, Seller except (i) in good faith performance of the Restricted Persons’ duties and responsibilities to the Company and (ii) pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 6.06(b) shall prevent the Restricted Persons from hiring (A) any employee whose employment has been terminated by the Company or Buyer or (B) after one hundred eighty (180) days from the date of termination of employment, any employee whose employment has been terminated by the employee. (c) During the Restricted Period, the Restricted Persons shall not, and shall ensure not permit any of their Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Company or potential clients or customers of the Company for purposes of diverting their business or services from the Company, except in the good faith performance of the Restricted Persons’ duties and responsibilities to the Company. (d) The Restricted Persons acknowledge that none a breach or threatened breach of its Affiliates this Section 6.06 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by the Restricted Persons of any such obligations, Buyer shall, enter into in addition to any sublease under nor make and all other rights and remedies that may be available to it in respect of such breach, be entitled to seek equitable relief, including a temporary restraining order, an assignment injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). (e) The Restricted Persons acknowledge and agree that the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth restrictions contained in this Section 11.05. (c) For purposes 6.06 are reasonable and necessary to protect the legitimate interests of Buyer, including in client relationships, good will, trade secrets of the Company’s CellRight Products and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 11.05:6.06 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, (but in no event more than the Xxxxxxxxx Restricted Period or the S&M Restricted Period, as applicable), geographic, product or service, or other limitations permitted by applicable Law. The Restricted Persons acknowledge and agree that the covenants contained in this Section 6.06 and each provision in this Section 6.06 are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 1 contract

Samples: Membership Interest Purchase Agreement

Non-Competition; Non-Solicitation. (a) During As additional consideration for Employee’s employment with the Restrictive Company and the compensation paid and payable to Employee hereunder, and to induce the Company to execute and deliver to Employee this Employment Agreement, Employee agrees that during the Restricted Period (as defined in Section 12(d) below), without the prior written consent of the Board, Employee shall not become nor shall Employee assist or enable any person or entity to become, a principal, owner, manager, officer, director, agent, consultant or executive or management employee of, or directly or indirectly own more than 1% of any class or series of equity securities in, any entity or business engaged in the business of buying nonperforming loans (the “Business”). Notwithstanding the foregoing, Employee will not be deemed to be engaged in the Business in violation of the terms of this Section 12(a), if (i) Employee is employed by an entity that is meaningfully engaged in one or more enterprises whose principal business is other than the Business (the “Non-Competing Businesses”); (ii) such entity’s relationship with Employee during the Restricted Period relates solely to the Non-Competing Businesses; and (iii) if requested by the Company, such entity and Employee provide the Company with reasonable assurances that Employee will have no direct or indirect involvement in the Business on behalf of such entity during the Restricted Period. (b) As additional consideration for Employee’s employment with the Company, the compensation paid and payable to Employee hereunder, and to induce the Company to execute and deliver to Employee this Employment Agreement, Employee agrees that during the Restricted Period, Seller will without the prior written consent of the Board, Employee shall not, and shall cause its Affiliates to noton Employee’s own behalf or on behalf of any person or entity (other than on behalf of the Company), directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Personindirectly, (i) solicit any clients, employees, customers or suppliers of the Company or any of its affiliates or subsidiaries to terminate their relationship or modify such relationship in any a manner participate that is adverse to the interests of the Company or engage in the ownership, management, operation, its affiliates and subsidiaries or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct engage, hire, or indirect ownership interest in - 33 - (other than through solicit the ownership of 10% or less of any class of securities registered employment of, whether on a recognized stock exchange full-time, part-time, consulting, advising, or dealer quotation system provided any other basis, any employee employed by the applicable Person Company or its affiliates or subsidiaries as of the date of such engagement, hiring, or solicitation or at any time during the 6 months preceding such engagement, hiring, or solicitation. This provision does not otherwise participate in prohibit the activities solicitation of such Person) employees by means of a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this Section 11.05general advertisement. (c) For purposes Employee agrees that the covenants of non-competition and non-solicitation in this Section 12 are reasonable covenants under the circumstances. Employee further agrees that any breach of the covenants contained in this Section 12 would irreparably injure the Company and its subsidiaries and affiliates. Accordingly, Employee agrees that the Company, in addition to pursuing any other remedies it may have in law or in equity, may obtain an injunction against Employee from any court having jurisdiction over the matter restraining any breach or threatened breach of this Section 11.05:12. The Company may clawback any payments paid or payable to Employee under Section 9 (other than the Standard Termination Payments) in the event that Employee breaches this Section 12. (d) The provisions of this Section 12 shall be in effect for the duration of Employee’s employment with the Company and shall survive the termination of Employee’s employment with the Company by either party for any reason for a period of two years after the effective date of such termination (the “Restricted Period”).

Appears in 1 contract

Samples: Employment Agreement (Pra Group Inc)

Non-Competition; Non-Solicitation. (a) During For a period of five (5) years commencing on the Restrictive Closing Date (the “Restricted Period”), Seller will not, and each person listed in Section 6.07(a) of the Disclosure Schedules (each a “Restricted Seller”) shall cause its Affiliates to not, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; or (ii) have an interest in any Person that engages directly or indirectly (in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, lender (other than an interest in a commercial lender providing financing in the ordinary course of business), principal, agent, shareholder trustee or investor consultant of such Person, other than as an employee of, or consultant to, Buyer or its Affiliates or the Heartland Companies or any of their Affiliates. Notwithstanding the foregoing, each Restricted Seller may own, directly or indirectly, solely as an investment, equity securities of any Person traded on any national securities exchange if such Restricted Seller is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own more than two percent (2%) of such Person’s fully diluted equity. (b) During the Restricted Period, each Restricted Seller shall not, directly or indirectly, hire or solicit any employee of the Heartland Companies to be become an employee or consultant of any Person or in encourage or induce any other capacity)such employee to leave such employment. (c) During the Restricted Period, either alone each Restricted Seller shall not, directly or in conjunction with any other Personindirectly, (i) in any manner participate solicit or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take awaywith, or attempt to solicitsolicit or engage with, divert, any customers or take away any trade, clients, customers, business, suppliers of the Heartland Companies or goodwill potential customers or otherwise compete suppliers identified by the Heartland Companies prior to the Closing Date for accounts purposes of diverting their business or personnel within services from the Restricted Territory;Heartland Companies. (bd) With respect Each Restricted Seller acknowledges that a breach or threatened breach of this Section 6.07 would give rise to each of the File Buy Storesirreparable harm to Buyer, Seller shall notfor which monetary damages would not be an adequate remedy, and shall ensure hereby agrees that none in the event of its Affiliates a breach or a threatened breach by such Restricted Seller of any such obligations, Buyer shall, enter into in addition to any sublease under nor make and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an assignment injunction, specific performance and any other relief that may be available from a court of the Lease applicable competent jurisdiction (without any requirement to post bond). (e) If a File Buy Store if Restricted Seller or any of such sublease or assignment would, or could reasonably be expected to, result Restricted Seller’s Affiliates is in a breach of any of the restrictive covenants provisions of subsections (a), (b), (c) or (d) above, then the time periods set forth in this Section 11.05such subsections, as it relates to such Restricted Seller, will be extended by the length of time during which such Restricted Seller is in breach of any of such provisions. (cf) For purposes of Each Restricted Seller acknowledges that the restrictions contained in this Section 11.05:6.07 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 6.07 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such

Appears in 1 contract

Samples: Securities Purchase Agreement (Titan Machinery Inc.)

Non-Competition; Non-Solicitation. (a) During For a period of three (3) years commencing on the Restrictive Closing Date (the "Restricted Period"), each Seller will (other than the Sellers identified in the Section 5.02 of the Disclosure Schedule) shall not, and shall cause not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between the Company and customers or suppliers of the Company. Notwithstanding the foregoing, any Seller may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if such Seller is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly (including as a memberindirectly, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10own 5% or less more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;. (b) With respect to During the Restricted Period, each of the File Buy Stores, Seller shall not, and shall ensure that none not permit any of its Affiliates shallto, enter into directly or indirectly, hire or solicit any sublease under nor make an assignment employee of the Lease applicable Company or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a File Buy Store if general solicitation which is not directed specifically to any such sublease or assignment wouldemployees; provided, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth that nothing in this Section 11.055.02(b) shall prevent such Seller or any of its Affiliates from hiring (i) any employee whose employment has been terminated by the Company or Buyer or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee. (c) For During the Restricted Period, each Seller shall not, and shall not permit any of its Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Company or potential clients or customers of the Company for purposes of diverting their business or services from the Company. (d) Each Seller acknowledges that a breach or threatened breach of this Section 11.05:5.02 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by such Seller of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). (e) Each Seller acknowledges that the restrictions contained in this Section 5.02 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.02 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.02 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 1 contract

Samples: Stock Purchase Agreement (Eyegate Pharmaceuticals Inc)

Non-Competition; Non-Solicitation. (a) During the Restrictive Restricted Period, Seller will not, and shall cause its Affiliates to not, directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity)indirectly, either alone for Seller’s own benefit or in conjunction with for the benefit of any other Person, (i) engage in, make any regulatory application to engage in, enter into any Contract (including any Provider Contract) in any manner participate or engage in the ownership, management, operationanticipation of engaging in, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, assist or provide products or any material services to or for, or provide financial or other assistance to any Person in engaging in a Restricted Business in the Restricted Territory (as hereinafter defined), Territory; (ii) have any direct or indirect an ownership interest in - 33 - (other than through the ownership of 10% any capacity, including as a partner, shareholder, member, principal, joint venturer, agent, trustee or less of lender, in any class of securities registered on a recognized stock exchange Person that engages directly or dealer quotation system provided the applicable Person does not otherwise participate indirectly in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, ; or (iii) knowingly permit such Seller's induce or persuade, or seek or attempt to induce or persuade, any Provider, Enrollee, supplier or licensor of the Business (including any existing or former Provider, Enrollee, supplier or licensor of Seller and any Person known to Seller to have become a Provider, Enrollee, supplier or licensor of the Business during the Restricted Period) to terminate or modify its Affiliate's namebusiness relationship with the Business in a manner adverse to the Business; provided, including "The Pharm" however, that it will not constitute a breach of this Section 6.07(a) for Seller or any part, combination or derivation thereof, of its Affiliates to be used (x) acquire any business entity which engages in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any the Restricted Business in the Territory if such business entity’s revenues from the operation of the Restricted Territory Business constitute less than five percent (5%) of such business entity’s total revenues (measured based on actual trailing twelve month revenues from the date of measurement) at all times during the Restricted Period, or (ivy) induce acquire or attempt hold bonds or up to induce, five percent (5%) of the outstanding shares of any class or assist anyone else to induce series of equity securities of any entity if such bonds or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;equity securities are publicly traded. (b) With respect to each of During the File Buy StoresRestricted Period, Seller shall not, and shall ensure that none not permit any of its Affiliates shallSubsidiaries to, enter into directly or indirectly, solicit for employment or hire any sublease under nor make an assignment of the Lease applicable Hired Employee, or encourage any Hired Employee to leave such employment or hire any Hired Employee who has left such employment, except pursuant to a File Buy Store if such sublease or assignment wouldgeneral solicitation which is not directed specifically to any Hired Employees; provided, or could reasonably be expected tohowever, result in a breach of any of the restrictive covenants set forth that nothing in this Section 11.056.07(b) shall prevent Seller or any of its Subsidiaries from hiring any employee of Buyer whose employment has been terminated by Buyer and such termination was not directly or indirectly attributable to actions of Seller. (c) For purposes Seller acknowledges that a breach or threatened breach of this Section 11.05:6.07 will give rise to irreparable harm to Buyer, for which monetary damages will not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Seller of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a Court of competent jurisdiction. (d) Seller acknowledges that the restrictions contained in this Section 6.07 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 6.07 should ever be adjudicated to exceed the time, geographic, product or service or other limitations permitted by applicable Law in any jurisdiction, then any Court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service or other limitations permitted by applicable Law. The covenants contained in this Section 6.07 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 1 contract

Samples: Asset Purchase Agreement (Centene Corp)

Non-Competition; Non-Solicitation. (a) During For a period of 24 months commencing on the Restrictive Closing Date (the "Restricted Period"), Seller will Xxxxxx X. Xxxxxx (“Marino”) shall not, and shall cause not permit any of its Affiliates affiliates to, directly or indirectly, (i) engage in or assist others in engaging in any business, trade or occupation similar to the business plan set forth on Section 1.01 of the disclosure schedules (the “Restricted Business”) in any and all states of the United States of America (the “Territory”); (ii) have an interest in any entity that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between the Buyer and customers or suppliers of the Buyer. Notwithstanding the foregoing, Marino may own, directly or indirectly, solely as an investment, securities of any entity traded on any national securities exchange if Marino is not a controlling person of, or a member of a group which controls, such entity and does not, directly or indirectly (including as a memberindirectly, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10own 5% or less more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;entity. (b) With respect to each of During the File Buy StoresRestricted Period, Seller Marino shall not, and shall ensure that none not permit any of its Affiliates shallaffiliates to, enter into directly or indirectly, hire or solicit any sublease under nor make an assignment employee of the Lease applicable Buyer or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a File Buy Store if general solicitation which is not directed specifically to any such sublease or assignment wouldemployees; provided, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth that nothing in this Section 11.055.04(b) shall prevent Marino or any of its affiliates from hiring (i) any employee whose employment has been terminated by the Buyer; or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee. (c) For During the Restricted Period, Marino shall not, and shall not permit any of its affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of Buyer or potential clients or customers of the Buyer for purposes of diverting their business or services from the Buyer. (d) If Marino breaches, or threatens to commit a breach of, any of the provisions of this Section 11.055.04, Buyer shall have the following rights and remedies, each of which rights and remedies shall be independent of the others and severally enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to Buyer under law or in equity: (i) the right and remedy to have such provision specifically enforced by any court having jurisdiction, it being acknowledged and agreed that any such breach or threatened breach may cause irreparable injury to Buyer and that money damages may not provide an adequate remedy to Buyer ; and (ii) the right and remedy to recover from the Marino all monetary damages suffered by Buyer as the result of any acts or omissions constituting a breach of this Section 5.04. (iii) Marino acknowledges that the restrictions contained in this Section 5.04 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.04 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable law. The covenants contained in this Section 5.04 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 1 contract

Samples: Asset Purchase Agreement (Universal Capital Management, Inc.)

Non-Competition; Non-Solicitation. (a) During For a period of five consecutive years commencing on the Restrictive Closing Date (the “Restricted Period”), each Seller will that is not designated as a “small minority investor” under this Agreement (each, an “RC Seller”) shall not, and shall cause such RC Seller will not permit any of its Affiliates to notto, directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Personindirectly, (i) engage in or assist others in engaging in, or have an interest in any manner participate Person that engages directly or indirectly in, any business that competes with the Business only within the State of Arizona in any capacity, including as a partner, shareholder, director, member, employee, principal, agent, trustee or consultant or (ii) cause or induce any material actual or prospective client, customer, supplier or licensor of the Company or a Company Entity or any other Person who has a material business relationship with the Company or a Company Entity (excluding the persons described in Section 9.07(b)) to terminate or modify its relationship to the extent that such RC Seller has actual knowledge or should reasonably know that such action would cause the Company or a Company Entity to incur Losses. For purposes of clarity, nothing in this Section 9.07(a) shall prohibit any RC Seller from engaging in any business outside of the State of Arizona. Notwithstanding the foregoing, any RC Seller and any of their respective Affiliates may own, directly or indirectly, solely as an investment, securities of any Person, if such RC Seller or Affiliate of such RC Seller is not a controlling Person of, or a member of a group which controls, such Person. The following exceptions will apply to this Section 9.07(a): (i) those Sellers designated as “small minority investors” on Exhibit A will not be subject to this Section 9.07(a); (ii) [**********] or any of his Affiliates may engage in the ownership, management, operation, VC Activities and no VC Activity shall be deemed to breach this Section 9.07(a). The “VC Activities” means those activities set forth on Schedule 9.07(a). The Restricted Period will automatically be reduced from five consecutive years to four consecutive years (or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business if in the Restricted Territory (as hereinafter defined)fourth consecutive year, (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted TerritoryPeriod will automatically terminate) if at any time during the five consecutive years after the execution of this Agreement, (iii) knowingly permit such Seller's the Parent, the Company, the Buyer, a Company Entity, Lower Holdings or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used Upper Holdings consummates a Change of Control unless if in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each a Change of Control of the File Buy StoresCompany, Seller shall notthe Buyer, and shall ensure that none of its Affiliates shalla Company Entity, enter into any sublease under nor make an assignment of Lower Holdings or Upper Holdings, the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of Sellers’ Representative receives the restrictive covenants consideration set forth in this Section 11.05. (cSchedule 1.01(e)(xi) for the entity undergoing the Change of Control. For purposes of this Section 11.05:9.07(a), an internal reorganization which results in the equity securities of Lower Holdings, Upper Holdings, the Buyer or the Company being owned by a different wholly-owned subsidiary of the Parent shall not constitute a Change of Control. Notwithstanding anything contained herein to the contrary, this Section 9.07 shall not be amended or modified without the prior written consent of

Appears in 1 contract

Samples: Membership Interest Purchase Agreement (Ayr Wellness Inc.)

Non-Competition; Non-Solicitation. As a material inducement to IntraLinks to enter into this Agreement, Executive hereby expressly agrees to be bound by the following covenants, terms and conditions. Executive hereby agrees that he has had and/or will have access to trade secrets, proprietary and confidential information relating to IntraLinks and its affiliates and their respective clients, including but not limited to, marketing data, financial information, client and prospect lists (including without limitation, computer- and web-based compilations (including but not limited to xxxxxxxxxx.xxx or other CRM system data) maintained by IntraLinks or its affiliates or Executive), and details of programs and methods, potential and actual acquisitions, divestitures and joint ventures, pricing policies, strategies, terms of service, business and product plans, cost information and software, in each case of IntraLinks, its affiliates and/or their respective clients. Accordingly, Executive voluntarily enters into the following covenants to provide IntraLinks with reasonable protection of those interests: (a) During Executive agrees that during the Restrictive Periodterm of his employment with IntraLinks and for a period of two (2) years thereafter, Seller will Executive shall not, and shall cause its Affiliates to notalone or as an employee, directly or indirectly (including as a memberofficer, director, agent, shareholder (other than an owner of 1% or investor less of the outstanding shares of any Person publicly-traded company), consultant, partner, member, owner or in any other capacity), either alone directly or in conjunction with any other Person, indirectly: (i) engage in any manner Competitive Activity, as defined below, within or with respect to any location in the United States or abroad in which Executive performed or directed his services (including but not limited to sales and customer support calls, whether conducted in person, by telephone or online) at any time during the twelve month period immediately preceding the termination of Executive’s employment for any reason (the “Territories”), or assist any other person or organization in engaging in, or preparing to engage in, any Competitive Activity in such Territories; (ii) solicit or provide services to any Clients, as defined below, of IntraLinks and/or any of its affiliates, on his own behalf or on behalf of any third party, in furtherance of any Competitive Activity. For purposes of this Section 7, “Client” shall mean any current or former customer of IntraLinks or user of IntraLinks’ services or software at any time during the term of Executive’s employment with IntraLinks; (iii) encourage, participate in or solicit any employee or consultant of IntraLinks and/or any affiliate to engage in Competitive Activity or to accept employment with any third party whether or not engaged in Competitive Activity. This subsection (iii) shall be limited to employees and consultants who: (A) are current employees or consultants; or (B) left the ownershipemployment of IntraLinks or whose provision of services to IntraLinks terminated within the twelve (12) month period prior to Executive’s termination of employment with IntraLinks for any reason; and (iv) for purposes of this Agreement, management“Competitive Activity” shall mean any offering, operationsale, licensing or control ofprovision by any entity of any software, formapplication service or system, acquirein direct competition with IntraLinks’ offerings and including electronic or digital document repositories for facilitating transactional due diligence, invest inmergers, financeacquisitions, owndivestitures, operatefinancings, manageinvestments, joininvestor relations, assistresearch and development, support, clinical trials or provide other business processes for which IntraLinks’ products or services to are or for, or provide financial or other assistance to a Restricted Business in have been used during the Restricted Territory twelve (as hereinafter defined), (ii12) have month period preceding termination of Executive’s employment for any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;reason. (b) With respect Executive agrees that the foregoing restrictions are reasonable and justified in light of: (i) the nature of IntraLinks’ business and customers; (ii) the confidential and proprietary information to each which Executive has had and will have exposure and access during the course of his employment with IntraLinks; and (iii) the need for the adequate protection of the File Buy Stores, Seller shall not, business and shall ensure that none the goodwill of its Affiliates shall, enter into IntraLinks. In the event any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth restriction in this Section 11.057 is deemed to be invalid or unenforceable by any court of competent jurisdiction, Executive agrees to the reduction of said restriction to such period or scope that such court deems reasonable and enforceable. (c) For purposes Executive acknowledges and agrees that any breach of this Section 11.05:7 shall cause IntraLinks immediate, substantial and irreparable harm and therefore, in the event of any such breach, Executive agrees that he or she shall immediately forfeit all compensation paid or payable pursuant to 6.3(b), without prejudice to any other remedies which may be available to IntraLinks, and IntraLinks shall have the right to seek specific performance and injunctive relief, without the need to post a bond or other security. (d) Executive acknowledges and agrees that the provisions of this Section 7 are in addition to, and not in lieu of, any non-solicitation, non-competition, confidentiality, nonraid and/or similar obligations which Executive may have with respect to IntraLinks and/or its affiliates, whether by agreement, fiduciary obligation or otherwise. Without in any way limiting the provisions of this Section 7, Executive further acknowledges and agrees that the provisions of this Section 7 shall remain applicable in accordance with their terms after the date of termination of Executive’s employment, regardless of whether Executive’s termination or cessation of employment is voluntary or involuntary.

Appears in 1 contract

Samples: Employment Agreement (IntraLinks Holdings, Inc.)

Non-Competition; Non-Solicitation. (a) During Employee agrees that during the Restrictive PeriodEmployment Term he will not engage in, Seller will notor otherwise directly or indirectly be employed by, or act as a consultant, or be a director, officer, employee, owner, agent, member or partner of, any other business or organization that is or shall then be competing with the Company, MSGI or any subsidiary of MSGI; provided, however, this provision shall not prohibit Employee (i) from owning less than five percent (5%) of the outstanding common stock of a corporation, if, at the time of its acquisition by Employee, such stock is listed on a national securities exchange, is reported on NASDAQ, or is regularly traded in the over-the-counter market by a member of a national securities exchange, or (ii) from maintaining an ownership interest in and being an employee of Xxxxxxx, Xxxxxxx and Xxxxxxxx, LLC. (b) If this Agreement is terminated by MSGI or the Company for or without Cause (as such term is defined in Section 9) or if Employee voluntarily terminates his employment hereunder, Employee, for a period of three (3) years from the date of such termination, shall cause its Affiliates to not, directly or indirectly indirectly, solicit or encourage any person who was a customer of the Company, MSGI or Xxxxxxxx during the one (including as a member, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i1) in any manner participate or engage in year prior to the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities date of such Person) a Person that operates a Restricted Business in termination to cease doing business with the Restricted TerritoryCompany, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" MSGI or any part, combination subsidiary or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each affiliate of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease Company or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this Section 11.05MSGI. (c) For purposes If this Agreement is terminated by MSGI or the Company for or without Cause or if Employee voluntarily terminates his employment hereunder, Employee agrees that for a period of this Section 11.05:two (2) years following the termination of employment with the Company, Employee will not directly, or indirectly by assisting others, recruit or hire, or attempt to recruit or hire any other employee of MSGI, the Company or any subsidiary or affiliate of the Company or MSGI.

Appears in 1 contract

Samples: Employment Agreement (Marketing Services Group Inc)

Non-Competition; Non-Solicitation. (a) The following provisions of this Section 7 shall only apply to the Optionee to the extent the Optionee is not subject to a non-compete or non-solicit agreement with the Company or its Affiliates. (b) The Optionee acknowledges and recognizes the highly competitive nature of the businesses of the Company and its Affiliates and accordingly agrees as follows: (i) During the Restrictive term of employment of the Optionee with the Company and its Affiliates (“Employment Term”) and, for the longer of (A) the eighteen (18) month period following the date the Optionee ceases to be employed by the Company and its Affiliates or (B) the period ending on the third anniversary of the Unit Purchase Closing Date (the “Restricted Period”), Seller the Optionee will not, and shall cause its Affiliates to not, directly whether on the Optionee’s own behalf or indirectly (including as a member, agent, shareholder or investor on behalf of any Person or in any other capacity), either alone or in conjunction with any other Person, directly or indirectly: (iI) solicit any business related in any manner participate way to the business of the Company and its Affiliates from any customer of the Company or engage in any of its Affiliates or from any prospective customer of the ownershipCompany or any of its Affiliates which the Optionee has reason to know was such a prospective customer during the Restricted Period, management(II) request, operationinduce or advise any such customer or prospective customer to withdraw, curtail adversely (to the Company or control ofany of its Affiliates), formmodify or cancel any such business with the Company or any of its Affiliates or (III) contact, acquiresolicit, invest in, finance, own, operate, manage, join, assist, support, canvass or provide approach any Person who provides products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" Company or any partof its Affiliates for the purpose of causing such Person to cease providing such products or services to the Company or any of its Affiliates, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Personexcept, in each case to the extent required in order to carry out the Optionee’s duties and obligations to the Company. (ii) During the Employment Term and until the later of (A) the one (1) year anniversary of the date the Optionee ceases to be employed by the Company and its Affiliates or (B) the third anniversary of the Unit Purchase Closing Date, the Optionee will not directly or indirectly (I) work for or provide consulting, financial or other services to any Restricted Business of the Seller Member Representatives or MC Capital, Inc. or any of their respective Affiliates or (II) work for or provide consulting, financial or other services to, engage in, conduct, manage or operate, or acquire or own any capital stock of or other equity interest in, any Person or business anywhere in the Restricted Territory world that competes with the business of the Company and its Affiliates (including, without limitation, businesses which the Company or its Affiliates have specific plans to conduct in the future and of which the Optionee is aware) (iva “Competitive Business”); provided that nothing in this Section 7(b)(ii) induce shall be deemed to prohibit the acquisition or attempt to induceholding of not more than 1% of the shares or other securities of a publicly traded entity involved in a Competitive Business as long the Optionee is not an employee, officer, director, consultant, independent contractor, or assist anyone else agent of, or otherwise providing services to, directly or indirectly, such entity and is not a controlling person of, or a member of a group which controls, such entity and provided further, that the Optionee may continue to induce or attempt serve as a member of the board of directors of (i) Global Brass & Copper, Inc. and (ii) Chassis Brakes International Group, which are each portfolio companies of the Seller Member Representatives so long as such activities are reasonably limited in terms of the time commitment required and do not interfere with the Optionee’s ability to induce, any customer within perform his duties and responsibilities at the Company. (iii) During the Restricted Territory to reduce Period, the Optionee will not, whether on the Optionee’s own behalf or discontinue on behalf of or in conjunction with any Person, directly or indirectly, (A) employ, engage or retain any individual who is at the time an employee, consultant or independent contractor of the Company or any of its business or solicit, divert, take awayAffiliates, or attempt to solicithad been an employee, divert, consultant or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each independent contractor of the File Buy Stores, Seller shall not, and shall ensure that none Company or any of its Affiliates shall, enter into any sublease under nor make an assignment within six (6) months prior to the last day of the Lease applicable Employment Term or (B) solicit, induce or persuade in any way any such individual to a File Buy Store if such sublease terminate or assignment would, modify his or could reasonably be expected to, result in a breach of her employment relationship with the Company or any of its Affiliates. (c) Optionee agrees that the restrictive covenants set forth in this Section 11.057 are reasonable covenants under the circumstances, and further agrees that if in the opinion of any court of competent jurisdiction such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants as such court shall deem necessary to cause the provisions hereof (as modified) to be valid and enforceable and to enforce the remainder of the covenants as so amended. Optionee agrees that any breach of any covenant contained in this Section 7 would irreparably injure the Company. Accordingly, Optionee agrees that the Company, in addition to pursuing any other remedies it may have in law or in equity, shall be entitled to a decree or order of specific performance and an injunction against Optionee from any court having jurisdiction over the matter, restraining any further violation of this Section 7 without proof of actual damages. (cd) For purposes If the Optionee breaches any of the material provisions of this Section 11.05:7, any exercise, payment or delivery made pursuant to this Agreement during the two (2) year period prior to such breach shall be rescinded. The Company shall notify the Optionee in writing of any such rescission within one (1) year of the date it acquires actual knowledge of such breach. Within ten (10) days after receiving such a notice from the Company, the Optionee shall pay to the Company the amount of any gain realized or payment received as a result of the exercise, payment or delivery pursuant to the Option. Such payment shall be made either in cash or by returning to the Company the number of Shares that the Optionee received in connection with the rescinded exercise, payment or delivery.

Appears in 1 contract

Samples: Nonqualified Stock Option Agreement (Metaldyne Performance Group Inc.)

Non-Competition; Non-Solicitation. (a) During the Restrictive Engagement Restricted Period, no Seller will notshall, and each Seller shall cause not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between Purchaser and customers or suppliers of Purchaser. (b) During the Post-Engagement Restricted Period, no Seller shall, and each Seller shall not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory in which Purchaser and its Affiliates own or operate a competitive business; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in which Purchaser and its Affiliates own or operate a competitive business in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between Purchaser and customers or suppliers of Purchaser. Notwithstanding the foregoing, during the Restricted Periods, Sellers may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Sellers are not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly indirectly, own five percent (including as a member, agent, shareholder 5%) or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this Section 11.05. (c) For During the Restricted Periods, no Seller shall, and each Seller shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of the Acquired Companies or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided that nothing in this Section 6.9(c) shall prevent any Seller or any of its Affiliates from hiring (i) any employee whose employment has been terminated by the Acquired Company or Purchaser or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee. (d) During the Restricted Periods, no Seller shall, and each Seller not permit any of its Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Acquired Companies or potential clients or customers of the Acquired Companies for purposes of diverting their business or services from the Acquired Companies. (e) Sellers acknowledge that a breach or threatened breach of this Section 11.05:6.9 would give rise to irreparable harm to Purchaser, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Sellers of any such obligations, Purchaser shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). (f) Sellers acknowledge that the restrictions contained in this Section 6.9 are reasonable and necessary to protect the legitimate interests of Purchaser and constitute a material inducement to Purchaser to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 6.9 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 6.9 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 1 contract

Samples: Membership Interest Purchase Agreement (Ferrellgas Partners Finance Corp)

Non-Competition; Non-Solicitation. (a) During Each of the Restrictive Sellers acknowledges that (v) the Transferred Companies are engaged in the business of manufacturing and marketing vinyl siding, windows, patio doors, fencing, railing and decking for the residential repair/remodeling and new construction markets (the “Transferred Company Business”); (w) the Company Business is conducted throughout the United States of America and Canada; (x) its ownership until the Closing Date of the Transferred Companies has given it trade secrets of and confidential information concerning the Transferred Companies; (y) the agreements and covenants contained in this Section 6.19 are essential to protect the business and goodwill of the Transferred Companies; and (z) the Buyer would not purchase the Shares but for such agreements and covenants. Accordingly, each covenants and agrees as follows: (i) For a period of two (2) years commencing on the Closing Date (the “Restricted Period”), no Seller will notshall, in the United States of America or in Canada, directly or indirectly, (A) engage in the Transferred Company Business for such Seller’s own account; (B) except as agreed to in writing by the Buyer and shall cause its Affiliates such Seller, render any services to any Person engaged in the Transferred Company Business or for use in competing with the Transferred Company Business; (C) have an interest in any Person engaged in the Transferred Company Business in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; provided, however, a Seller may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if such Seller is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly (including as a memberindirectly, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10own 5% or less more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person; or (D) a Person that operates a Restricted Business interfere in any material respects with business relationships (whether formed prior to or after the date of this Agreement) between any Transferred Company and customers or suppliers of any Transferred Company; and (ii) Without the prior written consent of the Buyer, during the Restricted TerritoryPeriod, no Seller shall, directly or indirectly, hire or solicit any employee of any Transferred Company or encourage any such employee to leave such employment or hire any such employee who has left such employment within one (iii1) knowingly permit year of the termination of such Seller's or its Affiliate's nameemployment, including "The Pharm" or any part, combination or derivation thereof, except pursuant to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) a general solicitation which is not directed specifically to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;such employees. (b) With respect If any Seller breaches, or threatens to commit a breach of, any of the provisions of Section 6.19, each of the Buyer and each Transferred Company shall have the following rights and remedies, each of which rights and remedies shall be independent of the others and severally enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to any of the Buyer or any Transferred Company under law or in equity: (i) The right and remedy to have such provision specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to each of the File Buy StoresBuyer and each Transferred Company and that money damages would not provide an adequate remedy to the Buyer or any Transferred Company; and (ii) The right and remedy to require each Seller to account for and pay over to the Buyer or any Transferred Company, as the case may be, all compensation, profits, monies, accruals, increments or other benefits derived or received by such Seller shall not, and shall ensure that none as the result of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in transactions constituting a breach of any of the restrictive covenants set forth in this Section 11.05such provision. (c) For purposes Each Seller acknowledges and agrees that as to it the provisions of this Section 11.05:6.19 are reasonable and valid in geographical and temporal scope and in all other respects. If any court of competent jurisdiction determines that all or any part of any of this Section 6.19 is invalid or unenforceable as to one or more of the Sellers, the remainder of this Section 6.19 shall not be affected and shall be given full effect as to the Sellers or such Seller, without regard to the invalid portions.‌ (d) If any court of competent jurisdiction determines that all or any part of this Section 6.19 is unenforceable as to one or more of the Sellers, such court shall have the power to reduce the scope of this Section 6.19, as to the Sellers or such Seller, and, in its reduced form, such provision shall then be enforceable. (e) The Buyer and each Seller intend to and confer jurisdiction to enforce the provisions of this Section 6.19 upon the courts of any jurisdiction within the geographical scope specified in Section 6.19(a). If the courts of any one or more of such jurisdictions hold the provisions of this Section 6.19 unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the Buyer and each Seller that such determination not bar or in any way affect the right of the Buyer or any Transferred Company to the relief provided above in the courts of any other jurisdiction within the geographical scope specified in Section 6.19(a), as to breaches of the provisions of this Section 6.19 in such other respective jurisdictions, the provisions of this Section 6.19 as they relate to each jurisdiction being, for this purpose, severable into diverse and independent covenants.

Appears in 1 contract

Samples: Stock Purchase Agreement

Non-Competition; Non-Solicitation. (a) During Each of Xxxx Xxxxxxxxx, Xxxxx Xxxxx and Xxxxxx Xxxxxxxxx agrees that, for a period of three years from and after the Restrictive PeriodClosing Date (or, Seller will if later, two years following termination of such Seller’s employment with Parent or its Affiliates, but in no event less than five years from the Closing Date), he shall not, and shall cause its Affiliates to notwithout the prior written consent of Parent, directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other through another Person, : (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Competitive Business (as defined below) in the Restricted Territory Geographical Areas (as hereinafter defineddefined below), ; (ii) have hire, recruit, attempt to hire, solicit or assist others in recruiting or hiring any direct Person who is an executive, employee, client, customer, consultant or indirect ownership interest in - 33 - registered representative (other than through including any known prospective registered representative) of the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" Company or any partSubsidiary, combination Parent or derivation thereofany Affiliate of Parent (each, to be used in connection with a “Restricted Person”) or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induceinduce any such Restricted Person to terminate, cancel or withdraw his employment or business relationship with, or the provision of his services to, the Company, Parent or an Affiliate of Parent or to take employment with, or utilize the services of, another party other than the Company, Parent or an Affiliate of Parent. The previous sentence shall not preclude general solicitations in newspapers or similar mass media not targeted toward Restricted Persons; and (iii) register with any broker-dealer or affiliate with any registered investment adviser other than the Surviving Corporation or a Parent Affiliate. Notwithstanding the foregoing, during the two years following termination of his employment with , or his service as an independent contractor to, Parent or its Affiliates, if such termination is later than the period of five years following the Closing Date, Xxxxxx Xxxxxxxxx may provide asset management and brokerage services to his existing or former customers or clients. (b) Xxxxx Xxxxxx agrees that, for a period of three years from and after the Closing Date (or, if later, two years (or one year with respect to subsections (i) and (iii) below) following termination of his employment with Parent or its Affiliates, but in no event less than four years from the Closing Date), he shall not, without the prior written consent of Parent, directly or indirectly through another Person: (i) engage in a Competitive Business (as defined below) in the Geographical Areas (as defined below); (ii) hire, recruit, attempt to hire, solicit or assist anyone else to others in recruiting or hiring any Restricted Person or induce or attempt to induceinduce any such Restricted Person to terminate, any customer within the Restricted Territory to reduce cancel or discontinue its withdraw his employment or business or solicit, divert, take awayrelationship with, or attempt the provision of his services to, the Company, Parent or an Affiliate of Parent or to solicit, diverttake employment with, or take away any tradeutilize the services of, clientsanother party other than the Company, customers, business, Parent or goodwill an Affiliate of Parent. The previous sentence shall not preclude general solicitations in newspapers or otherwise compete for accounts or personnel within the similar mass media not targeted toward Restricted Territory;Persons; and (biii) With respect to each of register with any broker-dealer or affiliate with any registered investment adviser other than the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to Surviving Corporation or a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this Section 11.05Parent Affiliate. (c) For purposes Each Seller not listed in Sections 5.8(a) or (b) agrees that, for a period of this four years from the Closing Date (five years from the Closing Date in the case of Xxxxxx Xxxxxx), or if later, one year from the date that he or she last receives salary, Additional Contingent Consideration, commissions or other payment from Parent or its Affiliates, he or she shall not, without the prior written consent of Parent, directly or indirectly through another Person: hire, recruit, attempt to hire, solicit or assist others in recruiting or hiring any Restricted Person or induce or attempt to induce any such Restricted Person to terminate, cancel or withdraw his employment or business relationship with, or the provision of his services to, the Company, Parent or an Affiliate of Parent or to take employment with, or utilize the services of, another party other than the Company, Parent or an Affiliate of Parent. The previous sentence shall not preclude general solicitations in newspapers or similar mass media not targeted toward Restricted Persons. This Section 11.05:5.8(c) shall not preclude or restrict any such Seller governed by Section 5.8(c) who is a registered representative of the Company or the Surviving Corporation from soliciting existing or former customers or clients of such registered representative.

Appears in 1 contract

Samples: Merger Agreement (Ladenburg Thalmann Financial Services Inc)

Non-Competition; Non-Solicitation. (a) During Employee's employment by the Restrictive PeriodCompany and, Seller will if Employee is terminated for Cause or if the Employment Term is terminated pursuant to Section 6(d) or (e), for a period of one year after Employee's termination of employment, Employee shall not, and shall cause its Affiliates to notexcept with the prior written consent of the Board, directly or indirectly (including as a memberindirectly, agentown, shareholder manage, operate, join, control, finance or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, control or control financing of, formor be connected as an officer, acquiredirector, invest inemployee, financepartner, ownprincipal, operateagent, managerepresentative, join, assist, supportconsultant or otherwise with, or provide products use or services permit Employee's name to be used in connection with, any business or for, or provide financial or other assistance enterprise in North America in which Employee would be engaged in any selling any product competitive to a Restricted Business that sold by the Company and from which the Company receives at least 5% of its gross revenues. Employee acknowledges that North America is the area in which the Restricted Territory Company presently does business. (as hereinafter defined), (iib) have any direct or indirect ownership interest in - 33 - (other than through The foregoing restrictions shall not be construed to prohibit the ownership by Employee of 10less than 5% or less of any class of securities of any corporation which is engaged in any of the foregoing businesses having a class of securities registered on pursuant to the Exchange Act, provided that such ownership represents a recognized stock exchange passive investment and that neither Employee nor any group of persons including Employee in any way, either directly or dealer quotation system provided indirectly, manages or exercises control of any such corporation, guarantees any of its financial obligations, otherwise takes any part in its business, other than exercising Employee's rights as a shareholder, or seeks to do any of the applicable Person does not otherwise participate in foregoing. (c) During Employee's employment by the activities Company and, if Employee is terminated for Cause or if the Employment Term is terminated pursuant to Section 6(d) or (e), for a period of such Person) a Person that operates a Restricted Business in one year after Employee's termination of employment, Employee shall not, except with the Restricted Territoryprior written consent of the Board, directly or indirectly, (iiii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divertdivert or take away, any of the Company's "Principal Customers," defined for the purposes hereof to include any customer of the Company, from which $100,000 or more of annual gross revenues are derived at such time, or take away (ii) encourage any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within Principal Customer to reduce its patronage of the Restricted Territory;Company. (bd) With respect During Employee's employment by the Company and, if Employee is terminated for Cause or if the Employment Term is terminated pursuant to each Section 6(d) or (e), for a period of the File Buy Storesone year after Employee's termination of employment, Seller Employee shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment except with the prior written consent of the Lease applicable to a File Buy Store if such sublease Board, directly or assignment wouldindirectly, solicit or hire, or could reasonably be expected toencourage the solicitation or hiring of, result in any person who was a breach of any managerial or higher level employee of the restrictive covenants set forth in this Section 11.05Company at any time during the term of Employee's employment by the Company by any employer other than the Company for any position as an employee, independent contractor, consultant or otherwise. The foregoing covenant of Employee shall not apply to any former employee of the Company after 12 months have elapsed subsequent to the date on which such former employee's employment by the Company has terminated. (c) For purposes of this Section 11.05:

Appears in 1 contract

Samples: Employment Agreement (Central Sprinkler Corp)

Non-Competition; Non-Solicitation. (a) During Employee hereby agrees and covenants that during the Restrictive PeriodTerm, Seller he will not, and shall cause its Affiliates to not, not directly or indirectly engage in or become interested (including whether as a memberan owner, principal, agent, shareholder stockholder, member, partner, trustee, venturer, lender or investor other investor, director, officer, employee, consultant or through the agency of any Person corporation, limited liability company, partnership, association or in any other capacity), either alone agent or in conjunction with any other Person, (iotherwise) in any manner participate business or engage enterprise in the ownershipUnited States that shall, managementat the time, operation, be in whole or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, in substantial part competitive with any part of the business conducted by Employer (or provide products any subsidiary or services to or for, or provide financial or other assistance to a Restricted Business in division thereof) during the Restricted Territory period of Employee's employment with Employer (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the except that ownership of 10not more than 1% or less of the outstanding securities of any class of securities registered any entity that are listed on a recognized stock national securities exchange or dealer quotation system provided the applicable Person does not otherwise participate traded in the activities over-the-counter market shall not be considered a breach of such Person) a Person that operates a Restricted Business in the Restricted Territory, this Subsection (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;a)). (b) With respect to each Employee agrees and covenants that for a period of two (2) years following his employment with Employer he will not (without first obtaining the File Buy Storeswritten permission of Employer), Seller shall notdirectly or indirectly, and shall ensure participate in the solicitation of any business of any type conducted by Employer (or any subsidiary or division thereof) during the period of Employee's employment with Employer from any person or entity that none was a client or customer of its Affiliates shallEmployer (or any subsidiary or division thereof) with whom Employee has been involved in servicing or soliciting on a regular basis, enter into any sublease under nor make an assignment during the period of the Lease applicable to a File Buy Store if such sublease or assignment wouldEmployee's employment with Employer, or could reasonably be expected towas a prospective client or customer of Employer or any subsidiary or division thereof, result in as the case may be, from which Employer or any subsidiary or division thereof, as the case may be, solicited business (or for which a breach proposal for submission was prepared) during the period of any of the restrictive covenants set forth in this Section 11.05Employee's employment with Employer. (c) For purposes Employee agrees and covenants that for a period of this Section 11.05:two (2) years following his employment with Employer he will not (without first obtaining the written permission of Employer), directly or indirectly, form an association with, employ, recruit for employment, offer to employ or induce to terminate his employment with Employer, any person who is then employed by Employer.

Appears in 1 contract

Samples: Employment Agreement (Caribiner International Inc)

Non-Competition; Non-Solicitation. (a) During For a period commencing on the Restrictive Period, Seller will not, Closing Date and shall cause its Affiliates ending upon the earlier to not, directly or indirectly (including as a member, agent, shareholder or investor occur of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate the Company’s acquisition of a new line of business or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each two-year anniversary of the File Buy StoresClosing Date (the “Restricted Period”), each Seller shall not, and shall ensure that none not permit any of its Affiliates shallto, enter into directly or indirectly, (A) engage in or assist others in engaging in the Restricted Business; (B) have an interest in any sublease under nor make an assignment Person that engages directly or indirectly in the Restricted Business in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (C) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between the Company and distributors, customers or suppliers of the Lease applicable Company, as the case may be. Notwithstanding the foregoing, each Seller may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if the Seller is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own 5% or more of any class of securities of such Person. (b) During the Restricted Period, each Seller shall not, and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of the Company or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a File Buy Store if general solicitation which is not directed specifically to any such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this Section 11.05employees. (c) For During the Restricted Period, each Seller shall not, and shall not permit any of its Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Company or potential clients or customers of the Company for purposes of diverting their business or services from the Company. (d) Each Seller acknowledges that a breach or threatened breach of this Section 11.05:5.06 would give rise to irreparable harm to the Buyers, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by any Seller of any such obligations, the Buyers shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). (e) Each Seller acknowledges that the restrictions contained in this Section 5.06 are reasonable and necessary to protect the legitimate interests of the Buyers and constitute a material inducement to the Buyers to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 1 contract

Samples: Stock Purchase Agreement (Edgar Express, Inc.)

Non-Competition; Non-Solicitation. (a) During For a period of 3 years commencing on the Restrictive Closing Date (the "Restricted Period"), Seller shall not directly or indirectly, (i) engage in or assist others in engaging in the Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) cause, induce or encourage any material actual client, customer, supplier or licensor of the Business (including any existing or former client or customer of Seller and any Person that, to Seller's Knowledge, becomes a client or customer of the Business during the Restricted Period), or any other Person who has a material business relationship with the Business as of the date of this Agreement or, to Seller's Knowledge, at any time during the Restricted Period, to terminate or modify any such actual relationship. Notwithstanding the foregoing, Seller will notmay own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Seller is not a controlling Person of, or a member of a group which controls, such Person and shall cause its Affiliates to does not, directly or indirectly (including as a memberindirectly, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10own 5% or less more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;. (b) With respect to each of During the File Buy StoresRestricted Period, Seller shall notnot directly or indirectly, and hire or solicit any person who is offered employment by Buyer pursuant to Section 6.05(a) or is or was employed in the Business during the Restricted Period, or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 6.07(b) shall ensure that none prevent Seller or any of its Affiliates shallfrom hiring (i) any employee whose employment has been terminated by Buyer or (ii) after 180 days from the date of termination of employment, enter into any sublease under nor make an assignment of employee whose employment has been terminated by the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this Section 11.05employee. (c) For purposes Seller acknowledges that a breach or threatened breach of this Section 11.05:6.07 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Seller of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). (d) Seller acknowledges that the restrictions contained in this Section 6.07 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 6.07 should ever be adjudicated to exceed the time, geographic, product or service or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service or other limitations permitted by applicable Law. The covenants contained in this Section 6.07 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction. (e) Within 3 Business Days after the Closing Date, Seller will change its name to another name that is not similar to, or does not reference, the name SharpSpring in any manner.

Appears in 1 contract

Samples: Asset Purchase Agreement (SMTP, Inc.)

Non-Competition; Non-Solicitation. (a) During Each Company and Shareholder agrees that, for a period of five (5) years from and after the Closing Date (the “Restrictive Period”), Seller will not, each Company and Shareholder shall cause its Affiliates to not, directly or indirectly (including as a memberindirectly, agentown, shareholder manage, operate, control or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, operation or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or forany financing to, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - Person (other than through the ownership Parent, the Buyer or their Subsidiaries or Affiliates) that engages in any activity, operation or business that competes with the Business, as currently conducted or proposed to be conducted, directly or indirectly, anywhere in the world, except that each such Company or Shareholder may hold less than three percent (3%) of 10% or less the capital stock of any class of securities registered on a recognized stock exchange or dealer quotation system provided such publicly-traded Person. (b) Each Company and Shareholder shall not, during the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divertRestrictive Period, take awayany action that is designed or intended to have the effect of discouraging any lessor, licensor, customer or supplier, from having a business relationship or potential business relationship with any Company or from maintaining business relationships or entering into a new business relationship with the Companies. During the Restrictive Period, each Company and Shareholder will refer all inquiries relating to the business to the Buyer and the officers of the Companies. (c) Each Company and Shareholder agrees that during the Restrictive Period, such Company and Shareholder shall not, directly or indirectly, interfere with, or attempt to interfere with, the employment of any officers, employees, representatives or agents of the Parent, the Buyer or the Companies, or, directly or indirectly solicit, diverthire or attempt to induce any of them to leave the employ of the Parent, the Buyer or take away any tradethe Companies; provided that the foregoing shall not prohibit the Companies from hiring a Person who responds to general media advertisements not directed at the officers, clientsemployees, customersrepresentatives or agents of the Parent, business, the Buyer or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;Companies. (bd) With respect to each of Each Company and Shareholder acknowledges and agrees that the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this Section 11.0510.3 are necessary to protect the goodwill of the Companies that are being purchased by the Buyer. Each Company and Shareholder further acknowledges and agrees that the Parent’s and the Buyer’s willingness to enter into this Agreement is conditioned and dependent upon the Companies’ and Shareholders’ promises to be bound by this Section 10.3. The Companies and Shareholders acknowledge and agree that any breach or threatened breach of the restrictive covenants contained in this Section 10.3 would cause irreparable injury to the Parent, the Buyer and the Companies and that the remedy at law for any such breach or threatened breach would be inadequate, and the Companies and the Shareholders agree and consent that, in addition to any other available remedy to the Parent, the Buyer or the Companies, temporary and permanent injunctive relief may be granted in any action which may be brought by the Parent, the Buyer or any Company to enforce such restrictive covenants without necessity of proof that any other remedy at law is inadequate. (ce) For purposes Each Company and Shareholder acknowledges and agrees that all of the restrictions, covenants and agreements in Section 10.3 hereof are appropriate, reasonable and valid (including with respect to geographic scope and duration) and fully necessary for the protection of the legitimate interests of the Buyer and the Parent. If any provision contained in this Section 10.3 shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Section 11.05:10.3, but this Section 10.3 shall 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 herein is held to cover a geographic area or to be for a length of time which is not permitted by applicable Law, or in any way construed to be too broad or to any extent invalid, such provision shall not be construed to be null, void and of no effect, but to the extent such provision would be valid or enforceable under applicable Law, a court of competent jurisdiction shall construe and interpret or reform this Section 10.3 to provide for a covenant having the maximum enforceable geographic area, time period and other provisions (not greater than those contained herein) as shall be valid and enforceable under such applicable Law.

Appears in 1 contract

Samples: Asset Purchase Agreement (Meta Financial Group Inc)

Non-Competition; Non-Solicitation. (a) During Executive agrees to the Restrictive Periodnon-competition and non-solicitation provisions of this Section 7: (i) in consideration for the Confidential Information provided by the Company to Executive; and (ii) to protect the Confidential Information of the Company disclosed or entrusted to Executive by the Company or created or developed by Executive for the Company, Seller the business goodwill of the Company developed through the efforts of Executive and the business opportunities disclosed or entrusted to Executive by the Company. Executive agrees that in the event that Executive fails to comply with any of the provisions of this Section 7, Executive will repay to the Company any payments received pursuant to this Agreement and no further benefits will be payable to Executive under this Agreement. (b) Executive agrees that, while employed by the Employer or any of its Affiliates and for 12 months following a Covered Termination or any termination of employment by Executive, Executive shall not, without the prior written consent of the Company and shall cause its Affiliates to notthe Employer, directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Personindirectly, (i) in any manner participate carry on or engage in any Competing Business (as defined below) in the ownershipRestricted Area (as defined below); and (ii) own, management, operation, or control of, form, acquire, invest in, finance, ownmanage, operate, manage, join, assistbecome an employee, supportpartner, owner or provide products member of (or services an independent contractor to), control or participate in or loan money to, sell or lease equipment to or for, sell or provide financial or other assistance lease real property to any Person that engages in a Restricted Competing Business in the Restricted Territory Area. (as hereinafter definedc) Notwithstanding the restrictions contained in Section 7(b), (ii) have any direct Executive may own an aggregate of not more than 1% of the outstanding capital stock or indirect ownership interest in - 33 - (other than through the ownership of 10% or less equity security of any class of securities registered any corporation or other entity engaged in a Competing Business, if such capital stock or other equity security is listed on a recognized stock national securities exchange or dealer quotation system regularly traded in the over-the-counter market by a member of a national securities exchange, without violating the provisions of Section 7(b);, provided the applicable Person that Executive does not otherwise participate have the power, directly or indirectly, to control or direct the management or affairs of any such corporation or other entity and is not involved in the activities management of such Personcorporation. (d) Executive agrees that, while employed by the Employer or any of its Affiliates and for 12 months following a Person that operates a Restricted Business in Covered Termination or any voluntary termination of employment by Executive, Executive shall not, without the Restricted Territoryprior written consent of the Company and the Employer, directly or indirectly, (iiii) knowingly permit such Seller's hire or its Affiliate's nameinduce, including "The Pharm" entice or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance solicit (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, entice or assist anyone else solicit) any employee of the Company, the Employer or any of their respective Affiliates or ventures to induce leave the employment of the Company, the Employer or any of their respective Affiliates or ventures or (ii) solicit or attempt to induce, solicit the business of any customer within or acquisition prospect of the Restricted Territory to reduce Company, the Employer or discontinue its business any of their respective Affiliates or solicit, divert, take away, or attempt to solicit, divert, or take away ventures with whom Executive had any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within actual contact while employed at the Restricted Territory;Employer. (be) With respect Executive acknowledges that these restrictive covenants under this Agreement, for which Executive received valuable consideration from the Company and the Employer as provided in this Agreement, including, but not limited to the agreement of the Company and the Employer to provide Executive with Confidential Information are ancillary to otherwise enforceable provisions of this Agreement, that the consideration provided by the Company and the Employer gives rise to the interest of each of the File Buy Stores, Seller shall not, Company and shall ensure the Employer in restraining Executive and that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in are designed to enforce Executive’s consideration or obligations under this Section 11.05Agreement. Additionally, Executive acknowledges that these restrictive covenants contain limitations as to time and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other legitimate business interests of the Company and the Employer, including, but not limited to, the Company’s and the Employer’s need to protect their Confidential Information. (cf) For purposes of this Section 11.05:Agreement, the following terms shall have the following meanings: “Business” means any business in which the Company is engaged or in which the Company has taken material steps to engage during the prior two years of Executive’s employment; “Competing Business” means any Person which, wholly or in any significant part, engages in any business competing with the Business in the Restricted Area; and “Restricted Area” means any state or, if outside the United States, any country or subdivision thereof in which the Company (i) is then currently engaged in the Business, (ii) has engaged in the Business during the prior two years of Executive’s employment, or (iii) is actively pursuing business opportunities for the Business, and in each such case Executive either (x) received Confidential Information about the Company’s operations in such location or (y) worked in such location during the prior two years of Executive’s employment.

Appears in 1 contract

Samples: Change in Control Agreement (McDermott International Inc)

Non-Competition; Non-Solicitation. (a) During the Restrictive Period, Seller will not, and shall cause its Affiliates to not, directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in For a period of five years commencing on the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Closing Date (the “Restricted Business in the Restricted Territory (as hereinafter definedPeriod”), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall not, and shall ensure that none not permit any of its Affiliates shallto, enter into directly or indirectly, (i) design, manufacture, market or sell, or knowingly assist any sublease under nor make Person in designing, manufacturing, marketing or selling, Restricted Machinery in the Territory; or (ii) have an assignment interest in any Restricted Person in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant. Notwithstanding anything in this Agreement to the contrary, (a) Seller may own, directly or indirectly, solely as an investment, securities of any Restricted Person that is traded on any national securities exchange if Seller is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own 5% or more of any class of securities of such Person; (b) Buyer may waive, in whole or in part, (x) the five year period for a specific country or state(s) within the Territory and thus, reduce this term of the Lease applicable Restricted Period to a File Buy Store if such sublease shorter period of time for that specific country or assignment wouldstate; and (y) the Territory for Seller and an Affiliate and, thus, narrow the Territory for Seller or could reasonably be expected toan Affiliate to a specific country or state(s), result in a breach respect of any of the restrictive covenants set forth restrictions in Sections 6(a)(i), 6(a)(ii) or 6(a)(iii); (c) in the event of and immediately upon the occurrence of any Specified Event, without any action of the parties hereto, the provisions of this Section 6(a)(i) shall terminate immediately, with the sole following exception: Seller shall not and shall not permit its Affiliates to, design, manufacture, market or sell Restricted Machinery using Seller’s and its Affiliates’ facilities in Afton, Ohio or Ahmedabad, India, and shall not provide access to such facilities for such purposes to any newly-formed entity that would have been considered an Affiliate of Seller had such entity been formed as a Subsidiary of Parent on or prior to the date hereof, with respect to each such facility for a time period equal to the lesser of (A) two years after Seller and its Affiliates use such facility to manufacture and supply machines to Buyer pursuant to the Transition Services Agreement or any Manufacturing and Services Agreement, as applicable, and (B) five years commencing on the Closing Date; and (d) Seller and its Affiliates may invest in, purchase or otherwise acquire, whether by merger, purchase of assets, stock or controlling interest or otherwise, any Person or business or engage in any similar investment, merger and acquisition activity with any Person (such acquired Person, the “Acquired Entity”); provided, that, if more than twenty percent (20%) of the consolidated revenue of any such Acquired Entity is derived from the business of designing, marketing, manufacturing or selling Restricted Machinery in the Territory (that portion of the business of the Acquired Entity, the “Acquired Business”), Seller or the applicable Affiliate (including, if applicable such Acquired Entity) shall, following the consummation of such transaction, offer to Buyer the opportunity to purchase the Acquired Business from Seller or such Affiliate (including, if applicable such Acquired Entity) on terms to be mutually agreed upon. (ii) For a period of five years commencing on the Closing Date, Seller shall not, and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of the Business or encourage any such employee to leave such employment or hire any such employee who has left such employment, except Seller and its Affiliates may solicit (but for the avoidance of doubt, not hire) pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 11.056(a)(ii) shall (A) prevent Seller or any of its Affiliates from hiring any such employee after 180 days from the date of termination of employment; or (B) apply to any employee of Buyer or the entities comprising the Buyer Group (other than the Key Employees) who directly approaches Seller or its Affiliates for employment. (ciii) For During the Restricted Period, Seller shall not and shall not permit its Affiliates to provide to direct end user customers unique to Uniloy replacement parts or unique to Uniloy repair services for Uniloy-Brand Restricted Machinery in the Territory; provided, however, that upon the occurrence of any Specified Event, without any action of the parties hereto, this Section 6(a)(iii) shall terminate immediately, with the sole following exception: Seller shall not and shall not permit its Affiliates to, provide to direct end user customers unique to Uniloy replacement parts or unique to Uniloy repair services for Uniloy-Brand Restricted Machinery using Seller’s and its Affiliates’ facilities in Afton, Ohio or Ahmedabad, India, and shall not provide access to such facilities for such purposes to any newly-formed entity that would have been considered an Affiliate of Seller had such entity been formed as a Subsidiary of Parent on or prior to the date hereof, with respect to each such facility for a time period equal to the lesser of (A) two years after Seller and its Affiliates use such facility to manufacture and supply machines to Buyer pursuant to the Transition Services Agreement or any Manufacturing and Services Agreement, as applicable, and (B) five years commencing on the Closing Date. (iv) During the Restricted Period, Buyer shall not, and shall not permit any of the entities comprising the Buyer Group to, directly or indirectly, (i) engage in or assist others in engaging in the business of designing, manufacturing or selling (A) plastic processing equipment, auxiliary systems, related parts and services related to injection molding technologies (including low pressure injection molding) and extrusion technologies or (B) hot runner (including co-injection and other multi-layer technologies) or process control systems, mold bases and components or MRO supplies for plastic processing operations, other than the Business (the “Buyer Restricted Business”) in the Territory; provided that the Buyer Restricted Business shall not include the sale of parts or services in the aftermarket with respect to machines used in the businesses described in subclauses (A) and (B) so long as the entities comprising the Buyer Group are not aware that such machines were manufactured by Parent or any of its Subsidiaries; (ii) have an interest in any Person that engages directly or indirectly in the Buyer Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between the Seller and customers or suppliers of Buyer Restricted Business. Notwithstanding the foregoing, (a) the entities comprising the Buyer Group may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange that engages in the Buyer Restricted Business if Buyer is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own 5% or more of any class of securities of such Person; (b) in the event of and immediately upon any Person acquiring directly or indirectly control (as defined in the definition of “Affiliates”) of the Buyer Group, without any action of the parties hereto, the provisions of this Section 11.05:6(a)(iv) shall terminate immediately, with the sole following exception: Neither the entities comprising the Buyer Group nor such controlling Person shall utilize Seller’s current Tecumseh, Michigan facility in connection with a Buyer Restricted Business for a period of five years commencing on the Closing Date; (c) the Buyer Group may invest in, purchase or otherwise acquire, whether by merger, purchase of assets, stock or controlling interest or otherwise, any Person or business or engage in any similar investment, merger and acquisition activity with any Person (such acquired Person, the “Buyer Acquired Entity”); provided, that, if more than twenty percent (20%) of the consolidated revenue of any such Buyer Acquired Entity is derived from the Buyer Restricted Business, Buyer shall, following the consummation of such transaction, offer to Seller the opportunity to purchase that business that constitutes the Buyer Restricted Business from the Buyer Group on terms to be mutually agreed upon. (v) For a period of five years commencing on the Closing Date, Buyer shall not, and shall not permit any of the entities comprising the Buyer Group to, directly or indirectly, hire or solicit any employee of the Seller or its Affiliates or encourage any such employee to leave such employment or hire any such employee who has left such employment, except solicit (but for the avoidance of doubt, not hire) pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 6(a)(v) shall (A) prevent Buyer or any of the entities comprising the Buyer Group from hiring after 180 days from the date of termination of employment; or (B) apply to any Transferred Employee, any of the employees set forth on Schedule Y, or any employee of Seller or its Affiliates who directly approaches Buyer or the entities comprising the Buyer Group for employment, or any European Employee who transfers pursuant to the Acquired Rights Directive. (vi) Each Party acknowledges that a Breach or threatened Breach of this Section 6(a) would give rise to irreparable harm to the other Party, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a Breach or a threatened Breach by a Party of any such obligations, the other Party shall, in addition to any and all other rights and remedies that may be available to it in respect of such Breach, be entitled to seek equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without posting bond or other security. (vii) Each Party acknowledges that the restrictions contained in this Section 6(a) are reasonable and necessary to protect the legitimate interests of the other Party and constitute a material inducement to the other Party to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 6(a) should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 6(a) and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction. (viii) For the avoidance of doubt, any services performed by one Party or any of its Affiliates on behalf of or for the benefit of the other Party or any of its Affiliates, including pursuant to the Transition Services Agreement, any Manufacturing and Supply Agreement, or pursuant to a separate written request by the other Party or separate written agreement between the Parties, shall not constitute a Breach of this Section 6(a). The parties also agree to the covenant set forth on Schedule 6(a)(viii).

Appears in 1 contract

Samples: Asset and Share Purchase Agreement (Milacron Holdings Corp.)

Non-Competition; Non-Solicitation. (a) During For the Restrictive period commencing on the Closing Date and expiring on the earlier of five (5) year anniversary of the Closing Date or when Seller are dissolved (the “Non-Compete Period”), Seller will not, and shall cause its Affiliates to notno Restricted Person shall, directly or indirectly (including as a memberthrough another Person). (i) operate, agentengage in (or assist others in engaging in), shareholder acquire, participate in, provide competitive services to, provide financing to, be employed by, manage, control or investor own (or participate in the management, control or ownership of), or hold, (ii) acquire (through merger, stock purchase or the purchase of all or substantially all of the assets or otherwise) the ownership of, or any equity interest in, any Person or business that derives revenues from, or otherwise establish, whether alone or with others, or be connected in any other capacitymanner with, any business of the type and character engaged in and competitive with the Business (any such business, a “Competing Business”). (b) Notwithstanding Section 5.2(a), either alone nothing in this Agreement shall prohibit the Restricted Persons from acquiring or owning as a passive investment of two percent (2%) or less of the outstanding securities of any class of any publicly-traded securities of any entity that engages in a Competing Business. (c) Neither the Restricted Persons nor any of their Affiliates may, during the Non-Compete Period, in any manner, directly or indirectly, individually, in partnership, jointly or in conjunction with any Person, (i) recruit, solicit, engage, or hire, or attempt to recruit, solicit, engage, or hire, on its behalf or on behalf of any other Person, or encourage, assist or otherwise induce any Person to recruit, solicit or hire, any employee of Buyer or any of its Affiliates, or any employee of the Business who is a Transferred Employee; or (ii) otherwise encourage any employee or independent contractor to discontinue such Person’s employment by or engagement with Buyer; provided that general solicitations of employment published in a journal, newspaper or other publication of general circulation or listed on any internet job site or by a recruiter and not specifically directed towards any one or more such employees shall not be deemed to constitute solicitation for purposes of this Section 5.2(c). (d) Neither the Restricted Persons nor any of their Affiliates may, during the Non-Compete Period, in any manner, directly or indirectly, individually, in partnership, jointly or in conjunction with any Person, solicit any customer of the Business, or any Affiliate thereof, in each case, who is a customer of the Business on the Closing Date (each such Person, a “Customer”), (i) in any manner participate way interfere with the relationship between the Business, any of the Purchased Assets, the Assumed Liabilities, Buyer or engage in any of its Affiliates and any such Customer (including (A) persuading or attempting to persuade, any Customer not to hire Buyer or any of its Affiliates or otherwise persuading or attempting to persuade any Customer to discontinue commercial or business relationships with Buyer or any of its Affiliates or (B) making any negative or disparaging statements or communications about the ownershipBusiness, managementthe Purchased Assets, operationthe Assumed Liabilities, Buyer or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), any of its Affiliates) or (ii) have induce any direct Customer to purchase from a Competing Business services pertaining to the Purchased Assets and the Assumed Liabilities in competition with the Purchased Assets and the Assumed Liabilities, Buyer or indirect ownership interest in - 33 - (other than through the ownership of 10% its Affiliates, or less of to aid any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Competing Business in the Restricted Territory, (iii) knowingly permit identifying or soliciting any such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;Customer. (be) With respect to each of Seller acknowledges and agrees that the File Buy Stores, Seller shall not, covenants and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants agreements set forth in this Section 11.05.5.2 are reasonably designed to protect each other’s respective substantial investment in the Purchased Assets and the Assumed Liabilities, as applicable, and are reasonable with respect to their duration, geographic area and scope, and further acknowledge and agree that (ci) For purposes the covenants and agreements set forth in this Section 5.2 are a material inducement, and condition precedent, to each other consummating the transactions contemplated by this Agreement and that no Party would be willing to consummate the transactions contemplated by this Agreement without each of them entering into the covenants and agreements set forth herein, (ii) each Party will receive substantial direct and indirect benefits (including, in the case of Seller, the payment of consideration) by the consummation of the transactions contemplated by this Agreement, and (iii) Buyer would not obtain the benefit of the bargain set forth in this Agreement as specifically negotiated by the Parties if any Restricted Person breached this Section 5.2. The Parties acknowledge that this Section 5.2 constitutes independent covenants and agreements between the Parties and shall not be affected by the performance or non-performance of any other provision of this Agreement or any other Transaction Documents by either Party. If, at any time, the provisions of this Section 11.05:5.2 shall be determined to be invalid or unenforceable by reason of being vague or unreasonable as to duration, geographic area or scope, this Section 5.2 shall be considered divisible and shall be deemed amended to only such duration, geographic area or scope as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction.

Appears in 1 contract

Samples: Asset Purchase Agreement (Odyssey Semiconductor Technologies, Inc.)

Non-Competition; Non-Solicitation. (a) For a period of five (5) years commencing on the Closing Date (the “Restricted Period”), each of the Xxxxxx Seller Parties, the Xxxxx Seller Parties and, subject to Section 6.12(d) below, the Xxxxx Additional Parties (each, a “Restricted Party,” and collectively, the “Restricted Parties”) shall not, and shall not permit any of their respective Controlled Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) impede or interfere with the business relationships (whether formed prior to or after the date of this Agreement) between the Company and the Company Subsidiaries on the one hand, and customers or suppliers of the Company and the Company Subsidiaries on the other hand. Notwithstanding the foregoing, each of the Restricted Parties may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if none of such Restricted Parties, individually or collectively with all such other Restricted Parties and their respective Affiliates, is a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own 5% or more of any class of securities of such Person. (b) During the Restrictive Restricted Period, Seller will each of the Restricted Parties (subject to Section 6.12(d) below in the case of the Xxxxx Additional Parties) shall not, and shall cause its their respective Controlled Affiliates to notnot to, directly or indirectly (including as a member, agent, shareholder or investor of through any Person or in any other capacity), either alone or in conjunction with any other Person, contractual arrangement: (i) in solicit or recruit for employment any manner participate person who at any time on or engage in after the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to date of this Agreement is a Restricted Business in the Restricted Territory Company Group Employee (as hereinafter defined)) or encourage any such Company Group Employee to leave such employment; provided, that the foregoing shall not prohibit (iiA) have a general solicitation (including through search firms or other agents) to the public by general advertising, public job postings or similar methods of solicitation not specifically directed at Company Group Employees or (B) any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" Parties or any partof their respective Controlled Affiliates, combination directly or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this Section 11.05. (c) For purposes of this Section 11.05:indirectly,

Appears in 1 contract

Samples: Stock Purchase Agreement (Compass Group Diversified Holdings LLC)

Non-Competition; Non-Solicitation. (a) During For a period of five (5) years commencing on the Restrictive Closing Date (the “Restricted Period”), each Seller will Party shall not, and shall cause their Affiliates (other than THL and its Affiliates affiliates) not to, directly or indirectly, (i) engage in or assist others in engaging in the Business anywhere in the United States (excluding Alaska and Hawaii) (the “Territory”); (ii) have an interest in any Person that engages directly or indirectly in the Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between Buyer and clients, customers or suppliers of Buyer. Notwithstanding the foregoing, any Seller Party may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if such Seller Party does not, directly or indirectly (including as a memberindirectly, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10own 2% or less more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory. The Parties acknowledge and agree that, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be as used in connection with or otherwise knowingly lend assistance (financial or otherwise) this Section 7.16, the term “Affiliate” shall be deemed to any Personspecifically exclude, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induceinstance, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue THL and its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;affiliates. (b) With respect to During the Restricted Period, each of the File Buy Stores, Seller Party shall not, and shall ensure that none cause their Affiliates (other than THL and its affiliates) not to, directly or indirectly, hire or solicit any Transferred Employee or encourage any such employee to leave such employment or hire any such employee who has left such employment, except (i) pursuant to a general solicitation which is not directed specifically to any such employees or (ii) for any Transferred Employee who, at the time of such solicitation or hiring, has ceased to work for Buyer or any of its Affiliates shall, enter into any sublease under nor make an assignment for a period of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this Section 11.05at least three (3) months. (c) For During the Restricted Period, each Seller Party shall not, and shall cause their Affiliates (other than THL and its affiliates) not to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Business or potential clients or customers of the Business for purposes of diverting their business or services from Buyer or its Affiliates or the Business. (d) The Seller Parties acknowledge that a breach or threatened breach of this Section 11.05:Section

Appears in 1 contract

Samples: Asset Purchase Agreement

Non-Competition; Non-Solicitation. The Seller agrees as follows: (a) During From the Restrictive Closing Date until the fifth (5th) anniversary of the Closing (the “Non-Compete Period”), the Seller will shall not, and shall cause its Affiliates to notnot permit any Seller Affiliate to, directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity)way, either alone directly, indirectly, individually or in conjunction with through any other Person, (i) or for the benefit of any other Person, without the prior written Consent of the Purchaser, in any manner each instance, which Purchaser may withhold or condition in its sole and absolute discretion, own, manage, operate, control or participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products consult with or perform services to or for, or provide financial be connected in any manner with (whether as principal, agent, employee, employer, investor, consultant, shareholder, partner, member, financier or in any other assistance to a Restricted individual or representative capacity of any kind whatsoever), any Competitive Business anywhere in the Restricted Territory (as hereinafter defined)world; provided, (ii) have however, that the Seller or any direct or indirect ownership interest Seller Affiliate may invest in - 33 - (other than through the ownership of 10% or less securities of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not (but without otherwise participate participating in the activities of such Person) a if: (A) such securities are listed or traded on any national or foreign securities exchange; and (B) the Seller and the Seller Affiliates do not beneficially own (as defined Rule 13d-3 promulgated under the Securities Exchange Act of 1934) in excess of one percent (1.0%) of the outstanding equity of such Person. For the avoidance of doubt, the “Non-Compete Period” applicable to Xxxxxx Xxxxx shall be from the Closing Date until the second (2nd) anniversary of the Closing. (b) From the Closing Date until the second (2nd) anniversary of the Closing, the Seller shall not, and the Seller shall cause the Seller Affiliates to not, in any way, directly, indirectly, individually or through any other Person, or for the benefit of any other Person, without the prior written Consent of the Purchaser, in each instance, which the Purchaser may withhold or condition in its sole and absolute discretion: (i) solicit, induce, encourage or recruit any Person that operates a Restricted Business who is at the time, or was during the preceding twelve (12) months, an employee, contractor or consultant of the Purchaser or any Purchaser Affiliate to terminate or reduce the scope of his, her or its employment or business relationship with Purchaser or any Purchaser Affiliate, or otherwise interfere with such relationship; (ii) employ or engage any Person described in the Restricted Territory, clause (i); (iii) knowingly permit such Seller's induce or encourage any licensor, vendor or supplier to the Purchaser or any Purchaser Affiliate, to terminate or reduce the scope of his, her or its Affiliate's name, including "The Pharm" relationship with the Purchaser or any partPurchaser Affiliate, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or interfere with such relationship; (iv) induce or attempt encourage any client, customer or licensee of the Purchaser or any Purchaser Affiliate to induceterminate or reduce the scope of his, her or its relationship with Purchaser or any Purchaser Affiliate, or assist anyone else to otherwise interfere with such relationship; or (v) induce or attempt encourage any client, customer or licensee of the Purchaser or any Purchaser Affiliate to induce, purchase or use any customer product or service that directly or indirectly competes with any product or service within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each scope of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth Competitive Business. References in this Section 11.059.6(b) to any Purchaser Affiliate shall mean only an Affiliate of the Purchaser to which the Purchaser has transferred the Purchased Assets. (c) For purposes The Seller agrees that this Section 9.6, including the provisions relating to duration, geographical area, and scope, is reasonable and necessary to protect and preserve Purchaser’s legitimate business interests and the value of the goodwill of the Purchased Assets and the Business and the value of the Purchased Assets and the Business. (d) If any provision of this Section 11.05:9.6 would be held to be excessively broad as to duration, geographical area, scope, activity, or subject, for any reason, such provision shall be modified, by limiting and reducing it, so as to be enforceable to the extent allowed by applicable Laws. (e) The Seller acknowledges that any Breach of this Section 9.6 could result in serious and irreparable injury to the Purchaser, the Purchaser could not be adequately compensated by monetary damages alone, and the Purchaser’s remedy at law would not be adequate. Therefore, the Seller acknowledges and agrees that, in the event of a Breach by the Seller, the Purchaser shall be entitled, in addition to any other remedy at law or in equity to which the Purchaser may be entitled, to equitable relief against the Seller, including temporary restraining orders and preliminary and permanent injunctions to restrain the Seller from such Breach and to compel compliance, with the obligations of the Seller and the Seller waives the posting of a bond or undertaking as a condition to such relief.

Appears in 1 contract

Samples: Asset Purchase Agreement (Cardiva Medical, Inc.)

Non-Competition; Non-Solicitation. (a) Each Minority Investor that is an employee, officer, director or consultant of the Company (or any employee of the Company or any of its subsidiaries who transferred such employee’s Minority Shares to a Permitted Transferee) acknowledges and recognizes the highly competitive nature of the businesses of the Company and its Affiliates and accordingly agrees as follows: (i) During the Restrictive term of employment of the Minority Investor (or any employee of the Company or any of its subsidiaries who transferred such employee’s Minority Shares to a Permitted Transferee) with the Company or any of its Affiliates (the “Employment Term”) and, for the eighteen (18) month period following the date Minority Investor (or any employee of the Company or any of its subsidiaries who transferred such employee’s Minority Shares to a Permitted Transferee) ceases to be employed by the Company or any of its Affiliates (the “Restricted Period”), Seller Minority Investor (or any employee of the Company or any of its subsidiaries who transferred such employee’s Minority Shares to a Permitted Transferee) will not, and shall cause whether on Minority Investor’s (or any employee of the Company or any of its Affiliates subsidiaries who transferred such employee’s Minority Shares to nota Permitted Transferee) own behalf or on behalf of or in conjunction with any Person, directly or indirectly (including as A) solicit any business related in any way to the business of the Company and its Affiliates from any customer of the Company or any of its Affiliates or from any prospective customer of the Company or any of its Affiliates which Minority Investor (or any employee of the Company or any of its subsidiaries who transferred such employee’s Minority Shares to a memberPermitted Transferee) has reason to know was such a prospective customer during the Restricted Period, agent(B) request, shareholder induce or investor advise any such customer or prospective customer to withdraw, curtail adversely (to the Company or any of its Affiliates) modify or cancel any such business with the Company or any of its Affiliates or (C) contact, solicit, canvass or approach any Person who provides products or services to the Company or any of its Affiliates for the purpose of causing such Person to cease providing such products or services to the Company or any of its Affiliates, except, in each case to the extent required in order to carry out Minority Investor’s (or any other capacity)employee of the Company or any of its subsidiaries who transferred such employee’s Minority Shares to a Permitted Transferee) duties and obligations to the Company. (ii) During the Employment Term and during the Restricted Period, either alone Minority Investor (or any employee of the Company or any of its subsidiaries who transferred such employee’s Minority Shares to a Permitted Transferee) will not, whether on Minority Investor’s (or any employee of the Company or any of its subsidiaries who transferred such employee’s Minority Shares to a Permitted Transferee) own behalf or on behalf of or in conjunction with any other Person, directly or indirectly, (iA) employ, engage or retain any individual who is at the time an employee, consultant or independent contractor of the Company or any of its subsidiaries, or had been an employee, consultant or independent contractor of the Company or any of its subsidiaries within six (6) months prior to the last day of the term of employment of Minority Investor (or any employee of the Company or any of its subsidiaries who transferred such employee’s Minority Shares to a Permitted Transferee) with the Company or its subsidiaries or (B) solicit, induce or persuade in any manner participate way any such individual to terminate or modify his employment relationship with the Company or any of its subsidiaries. (iii) During the Employment Term and until the one (1) year anniversary of the date Minority Investor (or any employee of the Company or any of its subsidiaries who transferred such employee’s Minority Shares to a Permitted Transferee) ceases to be employed by the Company and its Affiliates, Minority Investor (or any employee of the Company or any of its subsidiaries who transferred such employee’s Minority Shares to a Permitted Transferee) will not directly or indirectly work for or provide consulting, financial or other services to, engage in, conduct, manage or operate, or acquire or own any capital stock of or other equity interest in, any Person or business anywhere in the ownershipworld that competes with the business of the Company and its Affiliates (including businesses which the Company or its Affiliates have specific plans to conduct in the future and of which Minority Investor (or any employee of the Company or any of its subsidiaries who transferred such employee’s Minority Shares to a Permitted Transferee) is aware) (a “Competitive Business”); provided that nothing in this Section 5.6(a)(iii) shall be deemed to prohibit the acquisition or holding of not more than 2% of the shares or other securities of a publicly traded entity involved in a Competitive Business as long the Minority Investor (or any employee of the Company or any of its subsidiaries who transferred such employee’s Minority Shares to a Permitted Transferee) is not an employee, managementofficer, operationdirector, consultant, independent contractor, or control agent of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or otherwise providing services to or foractively participating in the business of, directly or indirectly, such entity and is not a controlling person of, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined)member of a group which controls, (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or entity. (iv) induce It is expressly understood and agreed that although Minority Investor (or attempt any employee of the Company or any of its subsidiaries who transferred such employee’s Minority Shares to inducea Permitted Transferee) and the Company consider the restrictions contained in this Section 5.6 to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or assist anyone else territory or any other restriction contained in this Agreement is an unenforceable restriction against Minority Investor (or any employee of the Company or any of its subsidiaries who transferred such employee’s Minority Shares to induce a Permitted Transferee), 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 attempt indicate to inducebe enforceable. Alternatively, if any customer within court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away enforceability of any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within of the Restricted Territory;other restrictions contained herein. (b) With respect The obligations in this Section 5.6 shall not apply to each a Minority Investor if such Minority Investor is party to any employment agreement, subscription agreement, exchange and subscription agreement, non-competition agreement, non-solicitation agreement, restricted activities agreement or similar agreement, or any option agreement, between the Minority Investor and the Company or any Affiliate of the File Buy Stores, Seller shall not, Company that expressly contains non-competition and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease non-solicitation obligations applicable to a File Buy Store if such sublease or assignment wouldMinority Investor (such obligations in such other agreements, or could reasonably be expected to, result in a breach of any of collectively with the restrictive covenants obligations set forth in this Section 11.055.6, the “Protective Agreements”). (c) For purposes If the Minority Investor breaches any material provision of the noncompetition, non-solicitation or confidentiality terms of the Protective Agreements, any repurchase, purchase or other payment or delivery made pursuant to this Section 11.05:Agreement during the two (2) year period prior to the breach of the Protective Agreements shall be rescinded. The Company shall notify the Minority Investor in writing of any such rescission within one (1) year of the date it acquires actual knowledge of such breach. Within ten (10) days after receiving such a notice from the Company, the Minority Investor shall pay to the Company the amount of any gain realized or payment received as a result of the repurchase, purchase or other payment or delivery pursuant to this Agreement.

Appears in 1 contract

Samples: Stockholders' Agreement (Metaldyne Performance Group Inc.)

Non-Competition; Non-Solicitation. (a) During Through and including the Restrictive Separation Date and at all times during the two (2)-year period thereafter (collectively, the “Restricted Period”), Employee agrees that, in addition to any post-termination restrictive covenants (including any post-termination confidentiality, non-competition, non-solicitation, or non-disparagement covenants) to which Employee is subject, Employee shall not without the prior written consent of the Company’s Chief Executive Officer in his sole discretion, directly or indirectly, alone or jointly with any person or entity, participate in, engage in, facilitate the participation or engagement in or otherwise be involved with, or be employed in, consult with, advise or otherwise provide services to any natural gas, liquefied natural gas (LNG), hydrogen, ammonia or alternative fuel-related business, other than Employee’s services to the Company Group under the Consulting Agreement. (b) Employee agrees that, through and including the Separation Date and at all times during the Restricted Period, Seller will not, and Employee shall cause its Affiliates to not, directly or indirectly (including as a memberindirectly, individually or on behalf of any other person, firm, corporation, or other entity, solicit, aid, or induce any employee, representative, agent, shareholder or investor independent contractor of any Person member of the Company Group to terminate or in any other capacity), either alone reduce their employment or in conjunction engagement with the Company Group or to accept employment with or render services to or with any other Personperson, firm, corporation, or other entity unaffiliated with the Company Group, take any action to materially assist or aid any other person, firm, corporation, or other entity in identifying, hiring, or soliciting any such employee, representative, agent, or independent contractor of any member of the Company Group, or hire any such employee, representative, agent, or independent contractor of any member of the Company Group. This Section 12(b) shall not be violated by (i) in general solicitations and job postings not specifically targeted to any manner participate or engage in the ownershipemployee, managementrepresentative, operationagent, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, supportindependent contractor of the Company Group, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have Employee serving as a reference for any direct such employee, representative, agent, or indirect ownership interest in - 33 - independent contractor upon request. (other than through the ownership c) If it is determined by a court of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case competent jurisdiction in any Restricted Business state that any restriction in this Section 12 is excessive in duration or scope or is unreasonable or unenforceable under the Restricted Territory or (iv) induce or attempt to inducelaws of that state, or assist anyone else to induce or attempt to induce, any customer within it is the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each intention of the File Buy Stores, Seller shall not, Parties that such restriction may be modified or amended by the court to render it enforceable to the maximum extent permitted by the laws of that state. Employee acknowledges and shall ensure agrees that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to Company Group’s remedies at law for a File Buy Store if such sublease breach or assignment would, or could reasonably be expected to, result in a threatened breach of any of the provisions of Sections 10, 12, 13, 14, or 15 hereof would be inadequate and, in recognition of this fact, Employee agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, the Company, without posting any bond or other security, shall be entitled to obtain equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction, or any other equitable remedy which may then be available, without the necessity of showing actual monetary damages. Without limitation of the foregoing, in the event of a breach or threatened breach of any post-termination restrictive covenants set forth and confidentiality obligations to which Employee is subject (including, without limitation, Sections 10, 12, 13, 14, or 15 hereof), (i) Employee will immediately forfeit, without any consideration therefor, any then-outstanding and unpaid portion of the Outstanding ICP LTI Award and the CIP Award, and (ii) the Company, in this Section 11.05. addition to and supplementary to any other rights and remedies existing in its favor, whether at law or in equity, will be entitled to both (cx) For purposes recoup from Employee any and all amounts paid to Employee after the effective date of this Section 11.05:Agreement and Release under either the Outstanding ICP LTI Award or the CIP Award, and (y) specific performance and/or other injunctive or other equitable relief from a court of competent jurisdiction in order to enforce or prevent any violations of such restrictive covenants or confidentiality obligations.

Appears in 1 contract

Samples: Retirement Agreement (Tellurian Inc. /De/)

Non-Competition; Non-Solicitation. (a) During For a period of five (5) years after the Restrictive PeriodClosing Date, the Seller will shall not, and shall cause not permit any of its Affiliates to notto, directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquireindirectly, invest in, financeown, ownmanage, operate, managefinance, joincontrol, assistadvise, support, or provide products or render services to or for, guarantee the obligations of any Person engaged in or provide financial or other assistance planning to a Restricted become engaged in the Business in the Restricted Territory United States; provided, however, that, in addition to the acquisition of the Payment Shares and any Escrow Shares, if applicable, the Seller may purchase or otherwise acquire up to (as hereinafter defined), but not more than) five percent (ii5%) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of the securities registered on a recognized stock exchange or dealer quotation system provided the applicable of any Person does (but may not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in if such securities are listed on any national or regional securities exchange or have been registered under Section 12(g) of the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;Exchange Act. (b) With respect to each For a period of five (5) years after the File Buy StoresClosing Date, the Seller shall not, and shall ensure that none not permit any of its Affiliates shallto, enter into directly or indirectly: i. solicit the business of any sublease under nor make an assignment Person who is a customer of the Lease applicable Purchaser or the Company Group for the purposes of offering products and services that are competitive with the Business; ii. cause, induce or attempt to cause or induce any customer or supplier of any member of the Company Group on the Closing Date or within the year preceding the Closing Date to cease doing business with the Purchaser or the Company Group; or iii. hire, retain or attempt to hire any employee of the Purchaser or the Company Group; provided, that nothing shall prevent the Seller from hiring (i) any former employee of the Purchaser or the Company Group who has not been employed by the Purchaser or the Company Group for at least the later of six (6) months after the Closing or six (6) months after the employee was terminated or (ii) any Person who responds to a File Buy Store if such sublease general solicitation of employment that is not targeted or assignment would, or could reasonably be expected to, result in a breach of directed at any employees of the restrictive covenants set forth in this Section 11.05Purchaser or the Company Group. Notwithstanding the foregoing, Seller shall not be prohibited from hiring the Business Employees to whom the Purchaser has not offered employment as of the Closing. (c) For purposes The Seller acknowledges that a breach or threatened breach of this Section 11.05:6.13 would give rise to irreparable harm to Purchaser, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by the Seller of any such obligations, the Purchaser shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). (d) The Seller acknowledges that the restrictions contained in this Section 6.13 are reasonable and necessary to protect the legitimate interests of the Purchaser and constitute a material inducement to the Purchaser to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 6.13 should ever be adjudicated to exceed the time, geographic, product or service or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service or other limitations permitted by applicable Laws. The covenants contained in this Section 6.13 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 1 contract

Samples: Equity Purchase and Sale Agreement (Smart Sand, Inc.)

Non-Competition; Non-Solicitation. (a) During For a period of 2 years commencing on the Restrictive Closing Date (the “Restricted Period, Seller will not, and shall cause its Affiliates to not, directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall not, and shall ensure that none not permit any of its Affiliates shallto, enter into directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any sublease under nor make an assignment Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Lease applicable Business (including any existing or former client or customer of Seller 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. Notwithstanding the foregoing, Seller may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Seller is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own 10% or more of any class of securities of such Person. (b) During the Restricted Period, Seller shall not, and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any person who is offered employment by Buyer pursuant to Section 5.01(a) or is or was employed in the Business during the Restricted Period, or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a File Buy Store if general solicitation which is not directed specifically to any such sublease or assignment wouldemployees; provided, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth that nothing in this Section 11.055.03(b) shall prevent Seller or any of its Affiliates from hiring (i) any employee whose employment has been terminated by Buyer or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee. (c) For purposes Seller acknowledges that a breach or threatened breach of this Section 11.05:5.03 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Seller of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). (d) Seller acknowledges that the restrictions contained in this Section 5.03 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.03 should ever be adjudicated to exceed the time, geographic, product or service or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service or other limitations permitted by applicable Law. The covenants contained in this Section 5.03 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 1 contract

Samples: Asset Purchase Agreement (EzFill Holdings Inc)

Non-Competition; Non-Solicitation. (a) During For a period of three years commencing on the Restrictive date of this Agreement (the “Restricted Period, Seller will not, and shall cause its Affiliates to not, directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller Sellers shall not, and shall ensure not permit the Persons listed in Section 6.02 of the Disclosure Schedules to, directly or indirectly, (i) engage in or assist others in engaging in the Business; (ii) take any action that none is designed, intended or reasonably likely to have the effect of discouraging any customer, supplier, vendor, licensor, lessor, agent, employee, consultant and other Person under contract or otherwise associated or doing business with the Business or the Buyers and any of their respective Affiliates from maintaining the same business relationships with the Business or the Buyers and any of their respective Affiliates after the date of this Agreement as it maintained with the Business or the Buyers and any of their respective Affiliates prior to the date of this Agreement; (iii) cause, induce or encourage any actual or prospective client, customer, supplier or licensor of the Business (including any existing or former client or customer of any Seller and any Person that becomes a client or customer of the Business after the date of this Agreement), or any other Person who has a business relationship with the Business, to terminate or modify any such actual or prospective relationship; or (iv) own (excluding the ownership of less than five percent (5%) of the securities of any Person traded on any national securities exchange if such ownership does not coincide with any board of directors or management position with, or any other relationship affecting the management, control or operation or management of, such Person), manage, control or participate in the ownership, management or control of any business, or engage in developing, selling, manufacturing, distributing or marketing any product or service, that would be in competition with or engages, directly or indirectly, with the Business, whether as an employer, proprietor, partner, stockholder, trustee, beneficiary, independent contractor, employee, consultant, agent, lender, adviser or sales representative. (b) During the Restricted Period, the Sellers shall not and shall not permit the Persons listed in Section 6.02 of the Disclosure Schedules, without the express written consent of the Buyers, to directly or indirectly, solicit any employees, officers, directors, managers or members of the Buyers or any of their respective Affiliates or any person who is was employed in the Business during the Restricted Period to leave the employment of the Buyers or any such Affiliate for employment with any Seller or any of its respective Affiliates shallor Related Parties, enter into or violate the terms of their employment contracts, or any sublease under nor make an assignment employment arrangements, with the Buyers or any such Affiliate or Related Party. Notwithstanding anything contained herein to the contrary, the Sellers and their respective Affiliates and Related Parties shall also be prohibited from offering employment to and employing any employee, officer, director, manager or members of the Lease applicable to a File Buy Store if such sublease Buyers or assignment would, or could reasonably be expected to, result in a breach of any of their respective Affiliates who was employed by the restrictive covenants set forth in this Section 11.05Buyers or any of their respective Affiliates within the twelve months prior to the earlier of (x) the offer of employment to such individual or (y) the commencement of such individual’s employment with such Seller or applicable Affiliate. (c) For purposes The Sellers acknowledge that a breach or threatened breach of this Section 11.05:6.02 would give rise to irreparable harm to the Buyers, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by a Seller of any such obligations, the Buyers shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). (d) Each Seller agrees not to directly or indirectly take any actions, act in concert with any Person who takes an action, or cause or allow DataTech or any of the Sellers’ Affiliates or Related Parties (whom any Seller controls), to take any actions (including the failure to take a reasonable action) such that the resulting effect is to materially undermine the effectiveness of, or the intended benefits to the Buyers under, any of the provisions of this Section 6.02) (including adversely affecting the rights or ability of the Buyers to successfully enforce this Section 6.02). (e) Each Seller acknowledges that the restrictions contained in this Section 6.02 are reasonable and necessary to protect the legitimate interests of the Buyers and constitute a material inducement to the Buyers to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 6.02 should ever be adjudicated to exceed the time, geographic, product or service or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service or other limitations permitted by applicable Law. The covenants contained in this Section 6.02 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 1 contract

Samples: Asset Purchase Agreement (Lorillard, Inc.)

Non-Competition; Non-Solicitation. The restrictive covenants contained in this Section 5.16 are intended and necessary to protect the Assets, the Business and other interests and rights being acquired by Buyers under this Agreement as well as the other legitimate business interests of Buyers and their respective Affiliates. (a) During For the Restrictive Periodperiod commencing on the Closing Date and expiring on the fifth (5th) anniversary thereof, Seller will notexcept as permitted in this Section 5.16, and shall cause its neither Sellers nor any of their respective Affiliates to not(collectively, the “Restricted Parties”) shall, directly or indirectly indirectly, engage in the business of (i) owning, leasing or operating convenience stores (including but not limited to motor fuels, food, beverage and merchandise sales) or (ii) owning or operating a wholesale fuel distribution business (collectively, “Restricted Activities”) within (A) the States of California and Wyoming and (B) the ten (10) mile radius around the location of each parcel of Real Property (collectively, the “Restricted Area”), nor shall any Restricted Party, directly or indirectly, be employed by, invest in, have any ownership interest in, participate in, act as a consultant or lender to, provide services to (as an employee, director, officer, member, principal, licensor, trustee, broker, agent, shareholder or investor of any Person stockholder, partner, or in any other capacity), either alone operate, assist, represent or advise any Person that engages in conjunction or plans to engage in any Restricted Activity in the Restricted Area with any other Personrespect to such Restricted Activity or engagement plans. (b) For the period commencing on the Closing Date and expiring on the third (3rd) anniversary thereof, none of the Restricted Parties shall, without the prior written consent of Buyers, directly or indirectly, (i) in solicit, encourage, cause, induce, solicit, request or advise, any manner participate or engage in the ownershipemployee, managementindependent contractor, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial commissioned marketer or other assistance operator or consultant of any of Buyers or their respective Affiliates (including Transferring Employees) to a Restricted Business in leave the employment or engagement of any of Buyers or their respective Affiliates (known as such by any of the Restricted Territory (as hereinafter defined), Parties) within the Restricted Area or (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territoryhire, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with employ or otherwise knowingly lend assistance (financial engage any former employee, independent contractor, commissioned marketer or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory other operator or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach consultant of any of Buyers or their respective Affiliates (known as such by any of the restrictive covenants set forth Restricted Parties) who has left the employment or engagement of such Buyer or Affiliate as a result of a violation by any of the Restricted Parties of Section 5.16(b)(i). The foregoing restrictions in this Section 11.05clauses (i) and (ii) are not intended to preclude general solicitations in newspapers or similar mass media not specifically targeted towards Transferring Employees or other employees, independent contractors, commissioned marketers or other operators or consultants of Buyers or their respective Affiliates. (c) Notwithstanding the foregoing, or anything else contained in this Agreement to the contrary, the restrictions in Section 5.16(a) shall not apply to the following: (i) any investment by a Restricted Party in any Person that is traded on a national securities exchange if the Restricted Parties collectively hold less than two percent (2%) of the outstanding voting securities of such Person; (ii) the current or future business activities of CrossAmerica Partners, L.P.; (iii) the continued operation of the Station Properties by Sellers prior to the applicable CIC Conversion Date; and (iv) the current or future business activities of the Affiliates of Sellers at any Rejected Properties, but only to the extent such future activities constitute Ongoing Operations. For purposes of this Section 11.05:Agreement, “Ongoing Operations” shall mean, with respect to any Rejected Property, business operations conducted after the applicable CIC Conversion Date which are (A) conducted only at the same physical location and address for such location as of the Effective Date and (B) consistent with the business operations being conducted at such location as of the Effective Date.

Appears in 1 contract

Samples: Asset Purchase Agreement (CST Brands, Inc.)

Non-Competition; Non-Solicitation. (a) During Seller acknowledges the Restrictive highly competitive nature of the business of the Group Companies. In connection with the sale of all of its Shares in the Company, including the Company’s goodwill and the goodwill of the Subsidiaries of the Company, in exchange for good and valuable consideration offered to Seller for its Shares, for a period of five (5) years commencing on the Closing Date (the “Restricted Period”), Seller will each of the Shareholder Parties, including each of Xxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx, and each of Xxxxxx X. Xxxxxxx, Xxxxx Xxxxxxx and Xxxxxxxxx Xxxxxxx (the “Non-Compete Parties”), agrees that he shall not, and shall cause not permit any of his Affiliates to, directly or indirectly, whether acting alone or as a partner, shareholder, member joint venture, equity or security holder, officer, director, employee, principal, agent, trustee, consultant, independent contractor or lender, (other than in connection with providing services to a Group Company or other Affiliate of Buyer, including any entity acquired by a Group Company or Buyer or its Affiliates after Closing, in each case, at and in accordance with the request of such Group Company) (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages, directly or indirectly, in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, joint venture, equity or security holder, officer, director, employee, principal, agent, trustee, consultant, independent contractor or lender; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any Group Company and any customers or suppliers of such Group Company; provided, however, that Xxxxxx X. Xxxxxxx or Xxxxxxx X. Xxxxxxx may request a consent from the Chief Executive Officer of Parent to engage in such activities described in subsections (i) and (ii) and, upon delivery of the Chief Executive Officer’s written consent to engage in the activities, Xxxxxx X. Xxxxxxx or Xxxxxxx X. Xxxxxxx shall be permitted to engage in the activities described in and in accordance with such consent and its terms. Notwithstanding the foregoing, each of the Non-Compete Parties and their Affiliates may own, directly or indirectly, solely as an investment, securities of any Parent or Person traded on any national securities exchange only if such Non-Compete Party or Affiliate is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly (including as a memberindirectly, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10own 1% or less more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a . Restricted Business shall not include businesses currently owned, directly or indirectly, by any Non-Compete Party, solely with respect to the services described in Section 6.02(a) of the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, Disclosure Schedules and to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) the extent provided to any Person, in each case in any Restricted Business in and at the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;request of a Group Company. (b) With respect to each of During the File Buy StoresRestricted Period, Seller the Non-Compete Parties shall not, and shall ensure that none not permit any of its Affiliates shallto, enter into directly or indirectly, for themselves or another, solicit for employment any sublease under nor make current or former employee, contractor, or consultant of a Group Company, encourage any such employee, contractor, or consultant to leave such employment or contract period with the Buyer or its Affiliates, or hire, retain, or otherwise utilize the services of (whether as an assignment of the Lease applicable employee, consultant, volunteer or otherwise) any such employee, contractor, or consultant so solicited or encouraged, except pursuant to a File Buy Store if general solicitation that is not directed specifically to any such sublease or assignment wouldemployees, contractors, or could reasonably be expected toconsultants; provided, result in a breach of any of the restrictive covenants set forth however, that nothing in this Section 11.056.02(b) shall prevent the Non-Compete Parties or any of their Affiliates from soliciting (i) after six (6) months any employee whose employment or contract has been terminated by any Group Company or Buyer or (ii) after six (6) months from the date of termination of employment or contract period, any employee, contractor, or consultant whose employment or contract has been terminated by the employee, contractor, or consultant. (c) During the Restricted Period, the Non-Compete Parties shall not, and shall not permit any of its Affiliates to, directly or indirectly, for themselves or on behalf of another, solicit or entice, or attempt to solicit or entice, any Person that (i) was on the Closing Date a client or customer of any Group Company, (ii) is a Material Customer, (iii) to the knowledge of such Non-Compete Party is, on the Closing Date, or has been within two (2) years prior to that time, a client or customer of any Group Company or potential client or customer of any Group Company, or (iv) to the knowledge of such Non-Compete Party is, on the Closing Date, or has been within two (2) years prior to that time, actively solicited by any Group Company to become a client or customer of any Group Company, with the intent of diverting their business or services from such Group Company, including by requesting, advising or inducing such Person to withdraw, curtail or cancel, or engage in other activity that could adversely affect, the relationship such Person has with such Group Company. (d) The Non-Compete Parties acknowledge and agree (i) that the provisions of, and Seller’s obligations under, Section 6.01 and Section 6.02 are reasonable in scope and necessary for the protection of the Buyer and its legitimate business interests, and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement, (ii) that any of the Non-Compete Parties’ breach or threatened breach of any provision or obligation in this Section 6.01 or Section 6.02 would give rise to irreparable harm to Buyer for which monetary damages would not be an adequate remedy, and (iii) that Buyer shall be entitled to seek and obtain, in addition to any and all other rights and remedies that may be available to it in respect of such breach, equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, to prevent and/or remedy such a breach of threatened breach (without first having to demonstrate any actual damage, post any bond or furnish any other security interest thereof). In any proceeding for an injunction and upon any motion for a temporary or permanent injunction, the Buyer’s right to receive monetary damages shall not be a bar, or be interposed as a defense, to the granting of such relief. The Buyer’s right to injunctive relief is in addition to, and not in lieu of, any other rights and remedies available to it or them under law or in equity. For purposes of clarification, the rights and remedies that may be available to Buyer in respect of a breach of Section 6.01 or Section 6.02 shall not be limited, affected or diminished in any manner by Section 9.08. (e) In the event that any covenant contained in Section 6.01 or Section 6.02 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service or other limitations permitted by Law. The covenants contained in Section 6.01 and Section 6.02 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction. (f) If any Non-Compete Party, or any Affiliate of any Non-Compete Party, violates this Section 11.05:6.02, then the period of time during which the provisions thereof are applicable will automatically be extended for a period of time equal to the time that such violation began until such violation permanently ceases.

Appears in 1 contract

Samples: Share Purchase Agreement (Us Concrete Inc)

Non-Competition; Non-Solicitation. (a) During As an inducement to Purchaser to execute and deliver this Agreement and to consummate the Restrictive Periodtransactions contemplated hereby and to preserve the goodwill associated with the Business, Seller will and except as may be specifically authorized in writing by Purchaser expressly referencing this Section 6.5, for a period of three (3) years after the Closing Date, each of Sellers, Xxxxxxxx X. Xxxxxxxxx, Xxxxxxx X. Xxxxxx, Xxxxxx Xxxxxxxxx, Xxxxx Xxxxx, AFIC and AFIC II shall not, and shall cause his or its Affiliates to notnot to, directly or indirectly (including as a memberindirectly, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction association with any other another Person, : (i) in any manner participate or engage in the ownershipin, managementcontinue in, operationcarry on, or control of, form, acquire, invest in, finance, owncontrol, operate, manage, joinor have any ownership or financial interest (whether as proprietor, assistpartner, supportmember, stockholder, lender, referral source, consultant or provide otherwise) in, any business or Person that engages in any aspect of (x) extending credit to or processing payments for clients involved in the transportation industry or (y) the business of factoring receivables or engaging in ancillary businesses for the purpose of generating client acquisitions, including operating load boards and lead generation sites (collectively, a “Competitive Business”); (ii) consult with, advise or assist in any way, whether or not for consideration, any business or Person engaged in a Competitive Business (a “Competitor”), including advertising or otherwise endorsing the products or services to of any such Competitor, soliciting clients or for, otherwise serving as an intermediary for any such Competitor or provide loaning money or rendering any other form of financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, Competitor; (iii) knowingly permit such Seller's or its Affiliate's nameother than with respect to the individuals listed on Section 6.5(a)(iii) of the Seller Disclosure Schedule for the periods set forth therein, including "The Pharm" or any partsolicit, combination or derivation thereof, to be used in connection with induce or otherwise knowingly lend assistance (financial offer employment or otherwise) engagement as an independent contractor to, or engage in discussions regarding employment or engagement as an independent contractor with, or hire, any Person who is or was an employee, commissioned salesperson or consultant of, or who performed similar services for, any Seller, or assist any third party with respect to any Personof the foregoing, in unless such Person has been separated from his or her employment or other relationship with Purchaser and each case in any Restricted Business of its Affiliates for a period of twelve (12) consecutive months (it being understood that this Section 6.5(a)(iii) shall not prohibit the parties bound by this Section 6.5(a)(iii) from engaging professional services firms (e.g., law firms, audit firms and information technology consulting firms) that may in the Restricted Territory or past have been engaged by the Sellers); or (iv) induce or attempt engage in any practice the purpose of which is to induce, or assist anyone else evade the provisions of this covenant not to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;compete. (b) With respect to each Notwithstanding the foregoing, Section 6.5(a) shall not prohibit: (i) the ownership of not more than one percent (1%) of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach securities of any of the restrictive covenants set forth in this Section 11.05. (c) For purposes of this Section 11.05:corporation or other entity

Appears in 1 contract

Samples: Asset Purchase Agreement

Non-Competition; Non-Solicitation. (a1) During From the Restrictive Effective Date until the date that is five (5) years after the Closing Date (the “Non-competition Period”), Seller will notexcept with respect to any of the following companies, and shall cause its Affiliates to notno Existing Shareholder shall, directly or indirectly in any manner (including as a memberby owning any equity interest, agentcontract or through its Affiliate or the Related Parties or other methods equivalent thereto), shareholder or investor of any Person or engage in any other capacity)business the same as, either alone similar to or in conjunction competing with that of the Company or any other Personaction to that effect throughout the world: (i) King Bear Film LLC, an entity incorporated in the United States (Shareholders: Sxxxxxxx Xxx, Cxxxxxxx Xxx, Cxxxxxx Xxx, Chungho Park); (ii) Prototype Groupe Inc., an entity incorporated in the United States; (iii) [Prototype Lab Co., Ltd.], an entity incorporated in Korea; (iv) [Lxxx Colored Co., Ltd.], an entity incorporated in Korea; and (v) [Monolith Asia Co., Ltd.], an entity incorporated in Korea. (2) During the Non-competition Period, no Existing Shareholder shall, directly or indirectly through its Affiliate or Related Parties, (i) solicit any customers, buyers, suppliers or other material business counterparties of the Company or induce any such party to suspend business with the Company or (ii) appoint, employ, or solicit any of the officers and employees of the Company, or solicit them to retire or resign from their position. (3) In the event that an Existing Shareholder wishes to engage in any competing business activities at any time after the expiry of the Non-competition Period, such Existing Shareholder must first offer a written proposal to the New Shareholder so that the New Shareholder may have the opportunity to jointly perform, participate in, cooperate, or affiliate in any other manner participate or with such competing business activities. After the proposal, the Existing Shareholders and the New Shareholder shall consult in good faith and, only if the Existing Shareholders and New Shareholder, despite their good faith efforts, fail to reach a final agreement within one (1) month from the date of the proposal, the Existing Shareholders may engage in the ownershipprohibited business activities or enter into agreements, management, operationnegotiations, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation commitments with third parties regarding thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this Section 11.05. (c) For purposes of this Section 11.05:

Appears in 1 contract

Samples: Share Purchase Agreement (K Wave Media Ltd.)

Non-Competition; Non-Solicitation. (a) During For a period of five (5) years commencing on the Restrictive Closing Date (the “Restricted Period”), each of Seller and ExchangeCo shall not directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between the Company Group and customers or suppliers of the Company Group. Notwithstanding the foregoing, Seller will notmay own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Seller is not a controlling Person of, or a member of a group which controls, such Person and shall cause its Affiliates to does not, directly or indirectly (including as a memberindirectly, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10own 1% or less more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;. (b) With respect to During the Restricted Period, each of the File Buy Stores, Seller and ExchangeCo shall not, and shall ensure that none of its Affiliates shalldirectly or indirectly, enter into (i) solicit (except pursuant to a general solicitation which is not directed specifically to any sublease under nor make an assignment employees of the Lease applicable to a File Buy Store if such sublease Company Group) or assignment would, or could reasonably be expected to, result in a breach of hire any employee of the restrictive covenants set forth in this Section 11.05Company Group or any former employee of the Company Group or (ii) encourage any employee of the Company Group to leave such employment. (c) For During the Restricted Period, each of Seller and ExchangeCo shall not, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Company Group or potential clients or customers of the Company Group for purposes of diverting their business or services from the Company Group. (d) Each of Seller and ExchangeCo acknowledges that a breach or threatened breach of this Section 11.05:5.07 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Seller or ExchangeCo of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). (e) Each of Seller and ExchangeCo acknowledges that the restrictions contained in this Section 5.07 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.07 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.07 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction. Purchase Agreement 56 Project Acorn

Appears in 1 contract

Samples: Securities Purchase Agreement (Akerna Corp.)

Non-Competition; Non-Solicitation. (a) During Each of Seller and Seller Stockholder acknowledges the Restrictive competitive nature of the Business and accordingly agrees, in connection with the sale of the Purchased Assets, including the goodwill of the Business, which Buyer considers to be a valuable asset, and in exchange for good and valuable consideration, that for a period of two years commencing on the Closing Date (the “Restricted Period”), Seller and Seller Stockholder will not, and shall cause its will not permit any of their respective Affiliates to, directly or indirectly: (i) engage in or assist others in engaging in the Business (the “Restricted Business”) in United States (the “Territory”); (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, director, member, manager, employee, principal, agent, trustee, or consultant; or (iii) cause, induce, or encourage any material actual or prospective client, customer, supplier, or licensor of the Business (including any existing or former client or customer of Seller 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. Notwithstanding the foregoing, Seller and Seller Stockholder may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Seller or Seller Stockholder is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly (including as a memberindirectly, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10own 2% or less more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;. (b) With respect to each of During the File Buy StoresRestricted Period, neither Seller shall notnor Seller Stockholder will, and shall ensure that none will not permit any of its their respective Affiliates shallto, enter into directly or indirectly, hire or solicit any sublease under nor make an assignment of person who is or was employed in the Lease applicable Business during the Restricted Period, or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a File Buy Store if general solicitation which is not directed specifically to any such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth employees; provided that nothing in this Section 11.055.02(b) prevents Seller nor Seller Stockholder or any of their respective Affiliates from hiring: (i) any employee whose employment has been terminated by Buyer; or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee. (c) For purposes Each of Seller and Seller Stockholder acknowledges that a breach or threatened breach of this Section 11.05:5.02 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or threatened breach by Seller or Seller Stockholder of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond or other security or to prove actual damages or that monetary damages will not afford an adequate remedy). (d) Each of Seller and Seller Stockholder acknowledges that the restrictions contained in this Section 5.02 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.02 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction or any Governmental Order, then any court is expressly empowered to reform such covenant in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law or such Governmental Order. The covenants contained in this Section 5.02 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 1 contract

Samples: Asset Purchase Agreement (Wrap Technologies, Inc.)

Non-Competition; Non-Solicitation. a. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its affiliates and, subject to the provisions of Section 7(c)(iii), accordingly agrees as follows: (ai) During the Restrictive Employment Term and, for a period of twenty-four (24) months following the date Executive ceases to be employed hereunder for any reason (the “Restricted Period”), Seller Executive will notnot directly or indirectly: (A) engage in any business that competes with the business of the Company or its affiliates (including businesses which the Company or its affiliates have specific plans to conduct in the future, as to which the Company or its affiliates have taken steps towards commencing and shall cause as to which Executive has participated in such planning) in any geographical area where the Company or its Affiliates affiliates manufactures, produces, sells, leases, rents, licenses or otherwise provides its products or services (a “Competitive Business”); (B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person) who or which engages in a Competitive Business; (C) acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant; or (D) interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this Agreement) between the Company or any of its affiliates and customers, clients, or suppliers of the Company or its affiliates. (ii) Notwithstanding anything to the contrary in this Agreement, Executive may, directly or indirectly own, solely as an investment, securities of any Person engaged in the business of the Company or its affiliates which are publicly traded on a national or regional stock exchange or quotation system or on the over-the-counter market if Executive (x) is not a controlling person of, or a member of a group which controls, such person and (y) does not, directly or indirectly (including as a memberindirectly, agent, shareholder own 5% or investor more of any Person class of securities of such Person. (iii) During the Restricted Period, Executive will not, whether on Executive’s own behalf or in any other capacity), either alone on behalf of or in conjunction with any other Person, directly or indirectly: (iA) in solicit or encourage any manner participate employee of the Company or engage in its affiliates to leave the ownership, management, operationemployment of the Company or its affiliates; or (B) hire any such employee who was employed by the Company or its affiliates as of the date of Executive’s termination of employment with the Company or who left the employment of the Company or its affiliates coincident with, or control ofwithin one year prior to, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through termination of Executive’s employment with the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or Company. (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within During the Restricted Territory to reduce or discontinue its business or solicitPeriod, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall Executive will not, and shall ensure that none of directly or indirectly, solicit or encourage to cease to work with the Company or its Affiliates shall, enter into affiliates any sublease consultant then under nor make an assignment of contract with the Lease applicable to a File Buy Store if such sublease Company or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this Section 11.05its affiliates. (cv) Notwithstanding the foregoing, the term “affiliates” as used in Section 8(a) will not include any member of the Sponsor Group (as defined below) or their affiliates that are not engaged in Competitive Business. For purposes of this Section 11.05:Agreement, the term “Sponsor Group” shall mean Xxxx Capital Partners LLC, Kohlberg Kravis Xxxxxxx & Co. L.P., and Xxxxxxx Xxxxx Global Private Equity.

Appears in 1 contract

Samples: Employment Agreement (HCA Holdings, Inc.)

Non-Competition; Non-Solicitation. Commencing on the date hereof and ending on the last day of the Restricted Period (a) During the Restrictive Periodas defined below), Seller Ermilio covenants and agrees that he will not, and shall cause its Affiliates to notwithout the Purchaser'x xxxxx written consent, directly or indirectly (including indirectly, either on behalf of himself or on behalf of any business venture, as a memberan employee, consultant, partner, principal, stockholder, officer, director, trustee, agent, shareholder or investor otherwise (other than on behalf of any Person the Purchaser or in any other capacity)its Affiliates): (A) be employed by, either alone engage or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, operation or control of, formor act in any advisory, acquireexpert, invest in, finance, own, operate, manage, join, assist, support, consulting or provide products or services to or other capacity for, any entity or provide financial individual that competes with the Purchaser or other assistance to a Restricted Business its Affiliates in the Restricted Territory (as hereinafter defined)areas of pension administration, (ii) have any direct or indirect ownership interest in - 33 - (insurance product sales, investment advisory services and other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate retirement products, in the activities following territory: in Pennsylvania - the counties of such Person) a Person that operates a Restricted Business Bucks, Chester, Delaware, Montgomery and Philadelphia; and in the Restricted TerritoryNew Jersey - txx xxxxties of Burlxxxxxx, (iii) knowingly permit such Seller's or its Affiliate's nameXxmden, including "The Pharm" or any partCumberland, combination or derivation thereofGloucester, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted TerritoryMercer and Salem; (bB) With respect to each of solicit or divert any business or any cuxxxxxx from the File Buy Stores, Seller shall not, and shall ensure that none of Purchaser or its Affiliates shallor assist any person, enter into firm, corporation or other entity in doing so or attempting to do so; (C) cause or seek to cause any sublease under nor make an assignment of person, firm or corporation to refrain from dealing or doing business with the Lease applicable to a File Buy Store if such sublease Purchaser or assignment wouldits Affiliates or assist any person, firm, corporation or could reasonably be expected toother entity in doing so; or (D) hire, result in a breach of solicit or divert from the Purchaser or its Affiliates any of their respective employees, consultants or agents who have, at any time during the restrictive covenants set forth immediately preceding one (1) year period from the date hereof or the Restricted Period, been engaged by the Purchaser or its Affiliates, nor assist any person, firm, corporation or other entity in this Section 11.05doing so. (c) For purposes of this Section 11.05:

Appears in 1 contract

Samples: Non Competition, Non Disclosure and Non Solicitation Agreement (National Investment Managers Inc.)

Non-Competition; Non-Solicitation. For a period of eighteen (a18) During months commencing on the Restrictive Closing Date (the “Restricted Period”), Seller will Vendor shall not, and shall cause not permit any of its Affiliates to to, directly or indirectly: (i) engage in or assist others in engaging in the Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed before or after the date of this Agreement) between the Corporation and customers or suppliers of the Corporation. Notwithstanding the foregoing, Vendor may own, directly or indirectly, solely as an investment, securities of any Person traded on any stock exchange if Vendor is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly indirectly, own five percent (including as a member, agent, shareholder 5%) or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in . During the Restricted TerritoryPeriod, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller Vendor shall not, and shall ensure that none not permit any of its Affiliates shallto, enter into directly or indirectly, hire or solicit any sublease under nor make an assignment of the Lease applicable Employee or encourage any Employee to leave his or her employment or hire any Employee who has left such employment, except pursuant to a File Buy Store if general solicitation that is not directed specifically to any such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth employees; provided that nothing in this Section 11.05. 5.08(b) shall prevent Vendor or any of its Affiliates from hiring: (ci) For any Employee whose employment has been terminated by the Corporation or Purchaser or Parent; or (ii) after 180 days from the date of termination of employment, any Employee whose employment has been terminated by the Employee. During the Restricted Period, Vendor shall not, and shall not permit any of its Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Corporation or potential clients or customers of the Corporation for purposes of diverting their business or services from the Corporation. Vendor acknowledges that a breach or threatened breach of this Section 11.05:5.08 would give rise to irreparable harm to Purchaser, for which monetary damages would not be an adequate remedy, and hereby agrees that, in the event of a breach or a threatened breach by Vendor of any such obligations, Purchaser, as the case may be, shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an interim or permanent injunction, specific performance and any other relief that may be available from a court of competent equitable jurisdiction (without any requirement to post a bond or other security). Vendor acknowledges that the restrictions contained in this Section 5.08 are reasonable and necessary to protect the legitimate interests of Purchaser and constitute a material inducement to Purchaser’s entering into this Agreement and consummating the transactions contemplated by this Agreement. The covenants contained in this Section 5.08 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction. Vendor and Purchaser hall use their respective commercially reasonable efforts to give all notices to, and obtain all consents from, all third parties as required. If any consent, approval or authorization necessary to preserve any right or benefit under any Contract to which the Corporation is a party is not obtained before the Closing, Vendor shall, subsequent to the Closing, cooperate with Purchaser and the Corporation in attempting to obtain such consent, approval or authorization as promptly thereafter as practicable. If such consent, approval or authorization cannot be obtained, Vendor shall use its best efforts to provide the Corporation with the rights and benefits of the affected Contract for the term thereof and, if Vendor provides such rights and benefits, the Corporation shall assume all obligations and burdens thereunder. To facilitate the resolution of any claims made against or incurred by Vendor before the Closing, or for any other reasonable purpose, for a period of ten (10) years after the Closing, Purchaser shall: retain the Books and Records (including personnel files) of the Corporation relating to periods before the Closing in a manner reasonably consistent with the prior practices of the Corporation; and upon reasonable notice, afford the Representatives of Vendor reasonable access (including the right to make, at Vendor’s expense, photocopies), during normal business hours, to the Books and Records. To facilitate the resolution of any claims made by or against or incurred by the Corporation after the Closing, or for any other reasonable purpose, for a period of ten (10) years after the Closing, Vendor shall: retain the Books and Records (including personnel files) of Vendor which relate to the Corporation and its operations for periods before the Closing; and upon reasonable notice, afford the Representatives of Purchaser or the Corporation reasonable access (including the right to make, at Purchaser’s or the Corporation’s, as the case may be, expense, photocopies), during normal business hours, to the Books and Records. Neither Purchaser nor Vendor shall be obligated to provide the other party with access to any Books or Records (including personnel files) under this Section 5.10 where such access would violate any Law. Purchaser shall not be responsible for Pre-Closing Benefit Liability or any Equity Compensation Plan Liability, and Vendor shall indemnify Purchaser for any and all Pre-Closing Benefit Liability and Equity Compensation Liability under Section 7.02.

Appears in 1 contract

Samples: Share Purchase Agreement

Non-Competition; Non-Solicitation. (a) During For a period of four years commencing on the Restrictive Closing Date (the “Restricted Period”), Seller will Member shall not, and shall cause its Parent not to, and Member and Parent shall cause their respective Affiliates to notnot to, directly or indirectly, (i) engage in or assist any Person other than the Company in engaging in the Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly (in the Business in the Territory in any capacity, including as a partner, stockholder, member, employee, principal, agent, shareholder trustee or investor consultant, other than through its ownership of any Person Acquiror Common Stock (other than as an owner of less than 2% of the outstanding stock of a publicly traded company with no role in the management of that company); or (iii) intentionally interfere in any other capacity)material respect with the business relationships (whether formed prior to or after the date of this Agreement) between the Company and customers and suppliers of the Business. (b) During the Restricted Period, either alone Member shall not, shall cause Parent not to, and Member and Parent shall cause their respective Affiliates not to, directly or indirectly, for itself or on behalf of or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, including by means of a management, operationadvisory, operating, consulting or control ofsimilar agreement or as a consultant, formagent, acquireemployee, invest instockholder, financepartner, ownjoint venturer, operateinvestor, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" advisor or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to type of principal whatsoever of any Person, in each case in directly or indirectly, employ or solicit the employment of any Restricted Business in persons who are employed by the Restricted Territory Company or (iv) induce by Acquiror or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shalland are actively engaged in the Business; provided, however, that the foregoing restriction shall not apply to general solicitations not directed to a specific individual or group of individuals within the Acquiror’s or any of its Affiliates’ (including the Company’s) organization. (c) Member acknowledges that the restrictions contained in this Section 5.15 represent a material and valuable inducement for Acquiror to enter into any sublease under nor make an assignment this Agreement, deliver the Merger Consideration and consummate the Transactions. Parent acknowledges that the nature of the Lease applicable to a File Buy Store if activities restricted and the duration and geographic scope of such sublease or assignment wouldrestrictions, or could reasonably be expected to, result in a breach of any of the restrictive covenants all as set forth in this Section 11.05. (c) For purposes 5.15, are reasonable in view of the nature of the Business conducted by the Company and Acquiror’s need to protect the goodwill of the Company. Member represents to Acquiror that the enforcement of the restrictions contained in this Section 11.05:5.15 would not be unduly burdensome to Parent or any of its Affiliates. Member acknowledges that the restrictions contained in this Section 5.15 are necessary in order to induce Acquiror to consummate the Transactions. Notwithstanding the foregoing, if any provision, or any part hereof, is held to be unenforceable by any Governmental Authority because of the duration thereof or the area covered thereby, the Governmental Authority making the determination shall have the power to reduce the duration or the area of such provision, or to delete specific words or phrases, so that in its reduced or amended form such provision shall then be enforceable and be enforced.

Appears in 1 contract

Samples: Merger Agreement (Sunnova Energy International Inc.)

Non-Competition; Non-Solicitation. As a material inducement to the Company to enter into this Agreement, Executive hereby expressly agrees to be bound by the following covenants, terms and conditions. Executive hereby agrees that he will have access to trade secrets, proprietary and confidential information relating to the Company and its affiliates and their respective clients, including but not limited to, marketing data, financial information, client and prospect lists (including without limitation, computer- and web-based compilations (including but not limited to xxxxxxxxxx.xxx or other CRM system data) maintained by the Company or its affiliates or Executive), and details of programs and methods, potential and actual acquisitions, divestitures and joint ventures, pricing policies, strategies, terms of service, business and product plans, cost information and software, in each case of the Company, its affiliates and/or their respective clients. Accordingly, Executive voluntarily enters into the following covenants to provide the Company with reasonable protection of those interests: (a) During Executive agrees that during the Restrictive Periodterm of his employment with the Company and for a period of one year thereafter, Seller will Executive shall not, and shall cause its Affiliates to notalone or as an employee, directly or indirectly (including as a memberofficer, director, agent, shareholder (other than an owner of 2% or investor less of the outstanding shares of any Person publicly-traded company), consultant, partner, member, owner or in any other capacity), either alone directly or in conjunction with any other Person, indirectly: (i) engage in any manner participate Competitive Activity (as defined below) within or engage with respect to any location in the ownershipUnited States or abroad in which Executive performed or directed his services (including but not limited to sales and customer support calls, managementwhether conducted in person, operationby telephone or online) at any time during the 12-month period immediately preceding the termination of Executive’s employment for any reason (the “Territories”), or control of, form, acquire, invest assist any other person or organization in engaging in, financeor preparing to engage in, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business any Competitive Activity in the Restricted Territory (as hereinafter defined), such Territories; (ii) have solicit or provide services to any direct Clients, as defined below, of the Company and/or any of its affiliates, on his own behalf or indirect ownership interest in - 33 - (other than through the ownership of 10% or less on behalf of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Personthird party, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach furtherance of any of the restrictive covenants set forth in this Section 11.05. (c) Competitive Activity. For purposes of this Section 11.05:6, “Client” shall mean any then-current customer of the Company and any former customer of the Company who was a customer of the Company within the 12-month period immediately preceding the termination of Executive’s employment hereunder; (iii) encourage, participate in or solicit any employee or consultant of the Company and/or any affiliate to engage in Competitive Activity or to accept employment by or engagement with any third party, whether or not engaged in Competitive Activity. This subsection (iii) shall be limited to employees and consultants who: (A) are current employees or consultants; or (B) left the employment of the Company or whose provision of services to the Company terminated within the 12-month period prior to Executive’s termination of employment with the Company for any reason; and (iv) for purposes of this Agreement, “Competitive Activity” shall mean any offering, sale, licensing or provision by any entity of any software, application service or system, in direct competition with the Company’s current or currently contemplated offerings and including, without limitation, electronic or digital document repositories for inter-enterprise exchanges designed to facilitate transactional due diligence, mergers, acquisitions, divestitures, financings, investments, investor relations, research and development, clinical trials or other business processes for which the Company’s products or services are or have been used during the 12-month period preceding termination of Executive’s employment for any reason.

Appears in 1 contract

Samples: Employment Agreement (IntraLinks Holdings, Inc.)

Non-Competition; Non-Solicitation. The Executive acknowledges that his employment with the Company will, of necessity, provide him with specialized, unique knowledge and confidential information and that, in light of the competitive nature of the Company's business, the Company could be harmed if such knowledge and information were used in competition with the Company. The Executive further acknowledges that the Company would not enter into this Agreement and undertake the substantial obligations under this Agreement without the Executive's agreement to the following provisions of this Section 6: (a) During the Restrictive Period, Seller Restricted Period (as defined below) he will not, and shall cause its Affiliates to not, directly or indirectly (including indirectly, as a memberan officer, director, stockholder, partner, associate, employee, consultant, owner, agent, shareholder co-venturer or investor of any Person otherwise, become or be interested in any other capacity), either alone or in conjunction be associated with any other Personcorporation, firm or business engaged in the manufacture, marketing or sale of products which compete directly with products of the Company. The Executive's ownership, directly or indirectly, of not more than three percent (i3%) of the issued and outstanding stock of any corporation or other entity, the shares of which are traded on a national securities exchange or the Nasdaq Stock Market, shall not in any manner participate or engage in event be deemed to be a violation of the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in provisions of this Section 6(a). (b) During the Restricted Territory (as hereinafter defined)Period, (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does Executive shall not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territorycall upon, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, divert or take away, or attempt to call upon, solicit, divert, divert or take away any tradeaway, clients, customers, business, business of a type the same or goodwill or otherwise compete for accounts or personnel within similar to the Restricted Territory; (b) With respect business as conducted by the Company prior to each the date of termination of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of Executive's employment with the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of Company from any of the restrictive covenants set forth in this Section 11.05Customers of the Company upon whom he called or whom he solicited or to whom he catered or with whom he became acquainted after entering the employ of the Company. (c) The Executive acknowledges and agrees that during the time of his employment with the Company, he will gain valuable information about the identity, qualifications and ongoing performance of the employees of the Company. During the Restricted Period, the Executive shall not (i) hire, employ, offer employment to, or seek to hire, employ or offer employment to, any of the Company's senior level employees with whom he had contact prior to such termination of employment or (ii) solicit or encourage any such senior level employee to seek or accept employment with any other person or entity. (d) The Executive represents and warrants that the knowledge, skills and abilities he currently possesses are sufficient to permit him, in the event of his termination of employment hereunder for any reason, to earn a livelihood satisfactory to himself without violating any provision of this Agreement. (e) For the purposes of this Section 11.056, "Restriction Period" shall mean the period beginning on the date hereof and ending with:

Appears in 1 contract

Samples: Employment Agreement (Netrix Corp)

Non-Competition; Non-Solicitation. (a) During For a period of five (5) years commencing on the Restrictive Closing Date (the “Restricted Period”), each of Seller and ExchangeCo shall not directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between the Company Group and customers or suppliers of the Company Group. Notwithstanding the foregoing, Seller will notmay own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Seller is not a controlling Person of, or a member of a group which controls, such Person and shall cause its Affiliates to does not, directly or indirectly (including as a memberindirectly, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10own 1% or less more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;. (b) With respect to During the Restricted Period, each of the File Buy Stores, Seller and ExchangeCo shall not, and shall ensure that none of its Affiliates shalldirectly or indirectly, enter into (i) solicit (except pursuant to a general solicitation which is not directed specifically to any sublease under nor make an assignment employees of the Lease applicable to a File Buy Store if such sublease Company Group) or assignment would, or could reasonably be expected to, result in a breach of hire any employee of the restrictive covenants set forth in this Section 11.05Company Group or any former employee of the Company Group or (ii) encourage any employee of the Company Group to leave such employment. (c) For During the Restricted Period, each of Seller and ExchangeCo shall not, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Company Group or potential clients or customers of the Company Group for purposes of diverting their business or services from the Company Group. (d) Each of Seller and ExchangeCo acknowledges that a breach or threatened breach of this Section 11.05:5.07 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Seller or ExchangeCo of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). Securities Purchase Agreement 63 Project Acorn (e) Each of Seller and ExchangeCo acknowledges that the restrictions contained in this Section 5.07 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.07 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.07 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 1 contract

Samples: Securities Purchase Agreement (Akerna Corp.)

Non-Competition; Non-Solicitation. The Employee and the Company agree to the non-competition and non-solicitation provisions of this Exhibit A in consideration for the confidential information provided by the Company and its affiliates to the Employee pursuant to the Employee’s employment with the Company and its affiliates, to further protect the trade secrets and confidential information disclosed or entrusted to the Employee or created or developed by the Employee for the Company or its affiliates, to protect the business goodwill of the Company and its affiliates developed through the efforts of the Employee and the business opportunities disclosed or entrusted to the Employee and the other legitimate business interests of the Company and its affiliates, and as an express incentive for the Company to enter into the RSU Agreement. (a) During Subject to the Restrictive exceptions set forth in Section 2(b) below, the Employee expressly covenants and agrees that during the Prohibited Period, Seller the Employee will notrefrain from carrying on or engaging in, and shall cause directly or indirectly, any Business in competition with the Company or its Affiliates to affiliates in the Restricted Area. Accordingly, the Employee will not, directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, financeindirectly, own, manage, operate, manage, join, assistbecome an employee of, supportpartner in, owner, or provide products member of (or services to an independent contractor to), control or forparticipate in, be connected with or loan money to, sell or lease equipment or property to, or provide financial or other assistance to a Restricted otherwise be affiliated with any Competing Business in the Restricted Territory Area. (as hereinafter definedb) Notwithstanding the restrictions contained in Section 2(a), (ii) have the Employee or any direct or indirect ownership interest in - 33 - (other of Employee’s affiliates may own an aggregate of not more than through 2% of the ownership of 10% or less outstanding stock of any class of securities registered any corporation that is a Competing Business, if such stock is listed on a recognized stock national securities exchange or dealer quotation system provided the applicable Person does not otherwise participate regularly traded in the activities over-the-counter market by a member of such Person) a Person national securities exchange, without violating the provisions of Section 2(a), provided that operates a Restricted Business in neither the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under Employee nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth Employee’s affiliates has the power, directly or indirectly, to control or direct the management or affairs of any such corporation and is not involved in this Section 11.05the management of such corporation. (c) For purposes The Employee further expressly covenants and agrees that during the Prohibited Period, the Employee will not, and the Employee will the Employee’s affiliates not to (i) engage or employ, or solicit or contact with a view to the engagement or employment of, any person who is an officer or employee of the Company or any of its affiliates, or (ii) canvass, solicit, approach, or entice away, or cause to be canvassed, solicited, approached, or enticed away, from the Company or any of its affiliates any person who or which is a customer of any of such entities during the period during which the Employee was employed by the Company or any of its affiliates. Notwithstanding the foregoing, the restrictions of this Section 11.05:2(c) shall not apply with respect to an officer or employee who responds to a general solicitation that is not specifically directed at officers and employees of the Company or any of its affiliates. (d) Before accepting employment with any other person or entity during the Prohibited Period, the Employee will inform such person or entity of the restrictions contained in this Exhibit A.

Appears in 1 contract

Samples: Restricted Stock Unit Agreement (Frank's International N.V.)

Non-Competition; Non-Solicitation. (a) During For a period of five (5) years commencing on the Restrictive Closing Date (the “Restricted Period”), Seller will each Shareholder shall not, and shall cause not permit any of its Affiliates to to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory or (ii) have an equity interest in any Person that engages directly or indirectly in the Restricted Business in the Territory. Notwithstanding the foregoing, any Shareholder may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if such Shareholder is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly indirectly, own one percent (including as a member, agent, shareholder 1%) or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person. For purposes of clarity, and notwithstanding anything to the contrary set forth herein (i) a Person that operates a Restricted Business Xxxxxxx Xxxxxx shall be permitted to continue to own and operate in the Restricted Territorysame manner (or on a larger scale) as operated prior to the Closing Date, and serve as an executive of, Armorock, LLC, and Affiliates of Armorock, LLC, and such ownership, operation and service, and activities related to such ownership, operation and service, shall not constitute a breach of this Section 5.06(a) or Section 5.06(c) and (iiiii) knowingly permit such Seller's or actions taken by a Landlord to mitigate its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in damages on account of a breach by the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within Company of its obligations under a lease between the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;Company and that Landlord shall not constitute a breach of this Section 5.06(a). (b) With respect to During the Restricted Period, each of the File Buy Stores, Seller Shareholder shall not, and shall ensure that none not permit any of its Affiliates shallto, enter into directly or indirectly, solicit any sublease under nor make Person who was an assignment employee of the Lease applicable Company on the Closing Date (each a “Restricted Employee”), or encourage any such Restricted Employee to leave such employment or hire any such employee, except pursuant to a File Buy Store if general solicitation which is not directed specifically to any such sublease or assignment wouldemployees; provided, or could reasonably be expected tohowever, result in a breach of any of the restrictive covenants set forth that nothing in this Section 11.055.06(b) shall prevent a Shareholder or any of its Affiliates from soliciting or hiring (i) any such employee whose employment has been terminated by the Company or Parent or any Affiliate of Parent, or (ii) after one hundred twenty (120) days from the date of termination of employment, any such employee whose employment with the Company or Parent or any Affiliate of Parent has been terminated by the employee (including a resignation by employee). (c) For During the Restricted Period in the Territory, each Shareholder shall not, and shall not permit any of its Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, with respect to the Restricted Business in the Territory, any Person who was a customer of the Company as of the Closing Date, for purposes of diverting their business or services from the Company. (d) Each Shareholder acknowledges that a breach or threatened breach of this Section 11.05:5.06 may give rise to irreparable harm to Parent and the Surviving Corporation, for which monetary damages may not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by any Shareholder of any such obligations, Parent and the Surviving Corporation shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to seek equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). (e) Each Shareholder acknowledges that the restrictions contained in this Section 5.06 are reasonable and necessary to protect the legitimate interests of Parent and the Surviving Corporation and constitute a material inducement to Parent and the Surviving Corporation to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 1 contract

Samples: Merger Agreement (Northwest Pipe Co)

Non-Competition; Non-Solicitation. In consideration of the receipt of the Restricted Stock granted pursuant to this Agreement, the receipt and sufficiency of which Employee hereby acknowledges, the Employee agrees that while he or she is employed by the Company or any of its Subsidiaries (acollectively, the “Company Group”) During and for a period of one (1) year after the Restrictive Periodeffective date of termination of his or her employment with the Company Group for any reason, Seller he or she will not: (i) Either directly or indirectly, engage in any business or enterprise (whether as owner, partner, officer, director, employee, independent contractor, consultant, investor, lender or otherwise, except as the holder of not more than one percent (1%) of the outstanding stock of a publicly-held company) that competes anywhere in any geographic area where the Company does business, including but not limited to the United States and shall cause its Affiliates to notCanada and their respective states, territories or provinces (collectively, the “Territory”) with the business of the Company Group as then engaged in or any prospective business which the Company is actively developing or implementing by any member of the Company Group or any of their respective Affiliates; (ii) Either alone or in association with others, directly or indirectly, (x) solicit, or permit any organization directly or indirectly controlled by the Employee to solicit, any employee of the Company Group to leave the employ of the Company Group, or (including y) solicit for employment or engage as an independent contractor, or permit any organization directly or indirectly controlled by the Employee to solicit for employment or engage as an independent contractor, any person who was employed by the Company Group at any time during the term of the Employee’s employment with the Company Group and whose employment with the Company Group has been terminated for a member, agent, shareholder or investor of any Person or in any other capacity), either period less than six months; or (iii) Either alone or in conjunction association with others, directly or indirectly, solicit or otherwise attempt to establish for himself or herself or any other person, firm or entity, anywhere in the Territory any business relationship of a nature that is competitive with the business or relationship of any member of the Company Group with any other Personperson, firm or corporation which was a customer, client, vendor, supplier or distributor (ior an actively sought prospective customer, client, vendor, supplier or distributor) in of any manner participate or engage in member of the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in Company Group and with whom the Restricted Territory (as hereinafter defined), (ii) have any Employee had direct or indirect ownership interest in - 33 - (other than through the ownership contact or knowledge, either personally or as a result of 10% or less Employee’s supervision of any class of securities registered on a recognized stock exchange Company Group employee, or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territoryencourage, (iii) knowingly permit such Seller's or its Affiliate's nameinduce, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce solicit or attempt to induce, solicit any customer within such person or entity to terminate his or her relationship with the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this Section 11.05. (c) Company. For purposes of this Section 11.05:5(a)(iii), the Company Group’s business or relationship with a customer, client, vendor, supplier or distributor (or actively sought prospective business or relationship) shall have existed: (x) at any time during the Employee’s period of employment with the Company Group (in the case of any activity during such period of employment); or (y) during the twelve-month period preceding the effective date of the Employee’s termination of employment with the Company Group (in the case of any activity after such termination of employment).

Appears in 1 contract

Samples: Restricted Stock Agreement (Hd Supply, Inc.)

Non-Competition; Non-Solicitation. 5.1 Subject to the provisions of Section 8 of the Purchase Agreement, during the term of Employee's employment by the Company and for any period thereafter in respect of which the Company is required to and does make severance payments ("Severance") to the Employee pursuant to the terms of his Employment Agreement, the Employee will not directly or indirectly: (a) During engage in any business or activity that competes with the Restrictive PeriodBusiness, Seller will notanywhere in the United States or Canada; (b) enter the employ of any person or entity engaged in any business or activity that competes with the Business or render any consulting or other services to any person or entity for use in or with the effect of competing with the Business; (c) have an interest in any business or activity that competes with the Business, and shall cause its Affiliates to notin any capacity, directly or indirectly (including including, without limitation, as a memberan investor, partner, stockholder, officer, director, principal, agent, shareholder employee, or investor creditor; provided, however, that nothing herein shall prevent the purchase or ownership by the Employee of less than 3% of the outstanding equity securities of any Person class of securities of a company registered under Section 12 of the Securities and Exchange Act of 1934, as amended; (d) recruit, solicit or induce, or attempt to recruit, solicit or induce, any employee or employees of the Company to terminate their employment with, or otherwise cease their relationship with, the Company; or (e) solicit, divert or take away, or in any other capacity)manner persuade or attempt to persuade any of the clients, either alone customers or in conjunction accounts, or prospective clients, customers or accounts of the Company which were contracted, solicited or served by the Employee while employed by the Company to discontinue, cease or alter his, her or its relationship with any other Personthe Company. [The following carve out is for Xxxxxxxxx only.] Notwithstanding the foregoing, Xxxxxxxxx may, upon (i) in any manner participate or engage in termination of employment by the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory Company without Cause (as hereinafter defineddefined in his Employment Agreement), (ii) have any direct resignation by Xxxxxxxxx for Good Reason (as defined in his Employment Agreement), or indirect ownership interest (iii) expiration of the Employment Term (as defined in - 33 - his Employment Agreement), be employed by (A) a consulting company so long as such consulting company is not engaged, and does not become engaged, in the Business or (B) a company in the film distribution, production or exhibition business so long as such company is not engaged, and does not become engaged, in the Business (other than through the ownership research, development or production of 10% proprietary back office transaction software for both distributors or less exhibitors of filmed and digital entertainment for its own use or for the use of such company's subsidiaries or affiliates); provided, that, prior to commencing employment with any class such company, Xxxxxxxxx shall deliver written notice to such company, with a copy to the Company, of securities registered on his obligations hereunder and under to the terms of the Purchase Agreement. [END OF CARVE OUT FOR XXXXXXXXX] Notwithstanding anything to the contrary contained in this Agreement, the Employee's Employment Agreement or the Purchase Agreement, the provisions of this Section 5.1 and any non-compete covenant in favor of the Company or its affiliates contained in any other document(s) to which the Employee is a recognized stock exchange or dealer quotation system provided party, shall terminate and be of no further force and effect in the event that the Company is in default, and fails to cure such default within thirty (30) days prior written notice from the applicable Person does not otherwise participate in Seller, under (i) any obligations under the activities of Note or Pledge Agreement securing such PersonNote, (ii) a Person that operates a Restricted Business in any payment obligation under the Restricted TerritoryPurchase Agreement, or (iii) knowingly any obligation of the Company to issue, deliver and/or permit such Seller's or its Affiliate's name, including "The Pharm" or the sale of any part, combination or derivation thereof, shares of Class A Common Stock issued pursuant to be used the terms of the Purchase Agreement. Notwithstanding anything to the contrary contained in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Personthe first paragraph of this Section 5.1, in each case in the event that the Employee's employment by the Company is terminated and the Company's obligation to pay Severance is terminated as a result of either (A) any Restricted Business in waiver by the Restricted Territory Employee of his right to receive such Severance or (ivB) induce or attempt to induce, or assist anyone else to induce or attempt to induce, as a result of any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each offset against earnings of the File Buy StoresEmployee in accordance with his Employment Agreement, Seller then the covenants contained in this Agreement shall notterminate upon the date on which the Severance payments are terminated, and shall ensure that none of its Affiliates shall, enter into waived or offset. 5.2 If any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants restriction set forth in this Section 11.055 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable. (c) For purposes of 5.3 The restrictions contained in this Section 11.05:5 are necessary for the protection of the business and goodwill of the Company and are considered by Employee to be reasonable for such purpose. In addition, Employee acknowledges that Employee's education, background, skills, and experience are such that the enforcement of the restrictions in this Section 5 will not unreasonably interfere with Employee's ability to earn a living. Employee agrees that Severance paid to him constitutes consideration in respect of his obligations hereunder with respect to the periods covered thereby, including, without limitation, periods subsequent to his employment.

Appears in 1 contract

Samples: Employment Agreement (Access Integrated Technologies Inc)

Non-Competition; Non-Solicitation. (a) During For a period of five (5) years commencing on the Restrictive Closing Date (the “Restricted Period”), Seller will and Owner shall not, and shall cause not permit any of its Affiliates to, directly or indirectly: (i) engage in or assist others in engaging in the Business (the “Restricted Business”) in the State of Nevada or Arizona (the “Territory”); (ii) have an interest in any Person that engages, directly or indirectly, in the Restricted Business in the Territory in any capacity, including as a partner, stockholder, director, officer, member, manager, employee, contractor, principal, agent, volunteer, intern, advisor, or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between Seller and customers or suppliers of Seller. Notwithstanding the foregoing, Seller and Owner may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Seller is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly indirectly, own five percent (including as a member, agent, shareholder 5%) or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;. (b) With respect to each of During the File Buy StoresRestricted Period, Seller and Owner shall not, and shall ensure that none not permit any of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach directly or indirectly, hire or solicit any employee of Buyer or encourage any of employee to leave the restrictive covenants set forth in this Section 11.05Buyer’s employment. (c) For purposes Seller and Owner acknowledges that a breach or threatened breach of this Section 11.05:6.03 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Seller of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, or specific performance (without any requirement to post bond). (d) Seller and Owner acknowledges that the restrictions contained in this Section 6.03 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 6.03 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction or any Governmental Order, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law or such Governmental Order. The covenants contained in this Section 6.03 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 1 contract

Samples: Asset Purchase Agreement (Digipath, Inc.)

Non-Competition; Non-Solicitation. Each Fxxxxxxx Party agrees that from and after the date hereof and until the termination of this Agreement in accordance with its terms, Fxxxxxxx Party shall take no action that would reasonably be likely to adversely affect or delay the ability to perform its respective covenants and agreements under this Agreement. (a) During For a period beginning on the Restrictive date of this Agreement and ending five years following the Closing Date (the “Restricted Period”), Seller will each Fxxxxxxx Party shall not, and shall cause not permit any of its Affiliates to, directly or indirectly, (i) engage in or knowingly assist others in engaging in the Competing Business in the United States; (ii) knowingly have an interest in any Person that engages, directly or indirectly, in the Competing Business in the United States in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between (a) the Company and customers or suppliers of the Company and (b) Parent and customers or suppliers of Parent. Notwithstanding the foregoing, each Fxxxxxxx Party may own, directly or indirectly, solely as a passive investment, securities of any Person traded on any national securities exchange if such Fxxxxxxx Party (together with its Affiliates) is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly (including as a memberindirectly, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10Beneficially Own 5% or less more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;. (b) With respect to each of During the File Buy StoresRestricted Period, Seller the Fxxxxxxx Parties, on the one hand, and the Parent Parties, on the other hand, shall not, and shall ensure not permit any of their respective Affiliates to, directly or indirectly, hire or solicit any employee of the other Parties or knowingly encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that none nothing in this Section 4.4(b) shall prevent any Party or any of its Affiliates shallfrom hiring (i) any employee whose employment has been terminated by the other Parties; (ii) after 180 days from the date of termination of employment, enter into any sublease under nor make an assignment employee whose employment has been terminated by the employee; or (iii) any employee who contacts such Party or its Affiliates on his or her own initiative and without any direct or indirect solicitation in contravention of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this Section 11.05above restrictions. (c) For purposes of Each Fxxxxxxx Party acknowledges that the restrictions contained in this Section 11.05:3.1(c) are reasonable and necessary to protect the legitimate interests of Parent and Holdco and constitute a material inducement to Parent and Holdco to enter into this Agreement and the Merger Agreement and consummate the transactions contemplated hereby and thereby. In the event that any covenant contained in this Section 3.1(c) should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 3.1(c) and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 1 contract

Samples: Support and Registration Rights Agreement (DraftKings Inc.)

Non-Competition; Non-Solicitation. (a) During For a period commencing on the Restrictive Closing Date and ending one (1) year after the Closing Date (the “Restricted Period”), Seller will Vendor shall not, and shall cause not permit any of its Affiliates to to, directly or indirectly: (i) engage in or assist others in engaging in any business that would be directly or indirectly competitive with the Target Corporation as of the Closing Date in the Territory; (ii) have an interest in any Person that engages directly or indirectly in any business that would be directly or indirectly competitive with the Target Corporation as of the Closing Date in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed before or after the date of this Agreement) between the Target Corporation and customers or suppliers of the Target Corporation. Notwithstanding the foregoing, Vendor may own, directly or indirectly, solely as an investment, securities of any Person traded on any stock exchange if Vendor is not a controlling Person of, or a member of a group that controls, such Person and does not, directly or indirectly (including as a memberindirectly, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10own 5% or less more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;. (b) With respect to each of During the File Buy StoresRestricted Period, Seller Vendor shall not, and shall ensure that none not permit any of its Affiliates shallto, enter into directly or indirectly, hire or solicit any sublease under nor make an assignment of the Lease applicable Employee or encourage any Employee to leave his or her employment or hire any Employee who has left such employment, except pursuant to a File Buy Store if general solicitation that is not directed specifically to any such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth employees; provided that nothing in this Section 11.055.04(b) shall prevent Vendor or any of its Affiliates from hiring: (i) any Employee whose employment has been terminated by the Target Corporation or Purchaser; or (ii) after 180 days from the date of termination of employment, any Employee whose employment has been terminated by the Employee. (c) For During the Restricted Period, Vendor shall not, and shall not permit any of its Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Target Corporation or potential clients or customers of the Target Corporation for purposes of diverting their business or services from the Target Corporation. (d) Vendor acknowledges that a breach or threatened breach of this Section 11.05:5.04 would give rise to irreparable harm to Purchaser, for which monetary damages would not be an adequate remedy, and hereby agrees that, in the event of a breach or a threatened breach by Vendor of any such obligations, Purchaser shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an interim or permanent injunction, specific performance and any other relief that may be available from a court of competent equitable jurisdiction (without any requirement to post a bond or other security). (e) Vendor acknowledges that the restrictions contained in this Section 5.04 are reasonable and necessary to protect the legitimate interests of Purchaser and constitute a material inducement to Purchaser's entering into this Agreement and consummating the transactions contemplated by this Agreement. The covenants contained in this Section 5.04 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 1 contract

Samples: Share Purchase Agreement (Vision Marine Technologies Inc.)

Non-Competition; Non-Solicitation. (a) During For a period of three years commencing on the Restrictive Closing Date (the “Restricted Period”), Seller will each of Exxx Xxxxxxx and Txxxx Xxxxx shall not, and shall cause not permit any of its controlled Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in any business that competes with the business engaged in by Company as of the Closing Date (the “Restricted Business”) anywhere in the world (the “Territory”); (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) cause, induce or encourage any material actual or prospective client or customer of Company during the one-year period preceding the prohibited conduct with whom the applicable Seller has had substantial dealings or supervisory authority (each, a “Covered Customer”) to terminate or modify any such actual or prospective relationship. Notwithstanding the foregoing, such Seller may (1) engage in the activities set forth on Section 8.12 of the Company Disclosure Letter or (2) own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange or national market system if such Seller is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly (including as a memberindirectly, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10own 2% or less more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;. (b) With respect to During the Restricted Period, each of the File Buy Stores, Seller shall not, and shall ensure not permit any of its controlled Affiliates to, directly or indirectly, hire or solicit any Person who is offered employment by Buyer pursuant hereto or is or was employed by the Buyer during the Restricted Period, or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that none nothing in this Section 8.12(b) shall prevent such Seller or any of its Affiliates shallfrom hiring (i) any employee whose employment has been terminated by Buyer or (ii) after 180 days from the date of termination of employment, enter into any sublease under nor make an assignment of employee whose employment has been terminated by the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this Section 11.05employee. (c) For purposes Each Seller acknowledges that a breach or threatened breach of this Section 11.05:8.12 may give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by such Seller of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).

Appears in 1 contract

Samples: Merger Agreement (Glimpse Group, Inc.)

Non-Competition; Non-Solicitation. Seller agrees as follows: (a) During From the Restrictive Closing Date until the third anniversary of the Closing (the “Non-Compete Period”), Seller will shall not, and shall cause its Affiliates to not, directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity)way, either alone directly, indirectly, individually or in conjunction with through any other Person, (i) or for the benefit of any other Person, without the prior written consent of Purchaser, in any manner each instance, which Purchaser may withhold or condition in its sole and absolute discretion, own, manage, operate, control or participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products consult with or perform services to or for, or provide financial be connected in any manner with (whether as principal, agent, employee, employer, investor, consultant, shareholder, partner, member, financier or in any other assistance individual or representative capacity of any kind whatsoever), any business that is competitive with the business of Seller as currently conducted and as currently proposed to a Restricted Business be conducted (the “Business”) anywhere in the Restricted Territory (as hereinafter defined), (ii) have world where any direct Purchaser Entity conducts or indirect ownership interest in - 33 - (other than through has plans to conduct the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided Business during the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;Non-Compete Period. (b) With respect to each of During the File Buy StoresNon-Compete Period, Seller shall not, in any way, directly, indirectly, individually or through any other Person, or for the benefit of any other Person, without the prior written consent of Purchaser, in each instance, which Purchaser may withhold or condition in its sole and shall ensure that none absolute discretion: (i) solicit, induce, encourage or recruit any employee or contractor of its Affiliates shallSeller who assumes employment or other service with any Purchaser Entity to terminate or reduce the scope of his or her employment or other service relationship with any Purchaser Entity or otherwise interfere with such relationship; (ii) employ or engage any Person described in clause (i); or (iii) induce or encourage any licensor, enter into any sublease under nor make an assignment vendor, supplier, client, customer or licensee of the Lease applicable Business to a File Buy Store if terminate or reduce the scope of his, her or its relationship with any Purchaser Entity or otherwise interfere with such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this Section 11.05relationship. (c) For purposes the avoidance of doubt, the restrictions set forth in this Section 11.05:section 5.7 shall not apply to any stockholder of Seller.

Appears in 1 contract

Samples: Asset Purchase Agreement (Biodesix Inc)

Non-Competition; Non-Solicitation. (a) Axxxx acknowledges and recognizes the highly competitive nature of the business of Alion and Alion’s subsidiaries and accordingly agree as follows: a. During the Restrictive Period, Seller will not, Term and shall cause its Affiliates to not, directly or indirectly the Restricted Period (including as a member, agent, shareholder or investor of any Person or defined in any other capacitySection 22.f.), either alone Axxxx will not knowingly (after due inquiry), whether on Atefi’s own behalf or on behalf of or in conjunction with any person, company, business entity or other Personorganization whatsoever, directly or indirectly solicit or assist in soliciting in competition with Alion, the business of any customer or prospective customer of Alion of which Axxxx is aware at the time of such termination. b. During the Restricted Period, Axxxx will not directly or indirectly: (i) engage in any manner participate services either individually or engage on behalf of any person that compete with any material business of Alion or Alion’s subsidiaries as conducted at the time Axxxx ceases to be employed by Alion (including, without limitation, businesses which Alion or Alion’s subsidiaries had at such time specific plans to conduct in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services future and as to or for, or provide financial or other assistance which plans Axxxx is aware at the time Axxxx ceases to a Restricted Business be employed by Alion) in the Restricted Territory United States (as hereinafter defineda “Competitive Business”), ; (ii) have acquire a financial interest in, or otherwise become actively involved with, any direct Competitive Business, directly or indirect ownership indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or consultant, except to the extent that such financial interest is a component of compensation or benefits payable pursuant to subsequent employment not otherwise prohibited by this Agreement; or (iii) interfere with, or attempt to interfere with, business relationships formed at or prior to the time Axxxx ceases to be employed by Alion between Alion or any of Alion’s subsidiaries and customers, clients, suppliers of Alion or Alion’s subsidiaries, as to which Axxxx is aware at the time he ceases to be employed by Alion. c. Notwithstanding anything to the contrary in - 33 - this Agreement, Axxxx may, directly or indirectly own, solely as an investment, securities of any person engaged in the business of Alion or Alion’s subsidiaries which are publicly traded on a national or regional stock exchange or on the over-the-counter market, or for which such person is required to file annual and quarterly reports with the U.S. Securities and Exchange Commission in accordance with the Securities Exchange Act of 1934, as amended, if Axxxx (other than through the ownership i) is not a controlling person of, or a member of 10% a group which controls, such person and (ii) does not, directly or less indirectly, own five percent (5%) or more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in person. d. During the Restricted TerritoryPeriod, Axxxx will not, whether on Atefi’s own behalf or on behalf of or in conjunction with any person, company, business entity or other organization whatsoever, directly or indirectly: (i) solicit or encourage any employee of Alion or any of Alion’s affiliates to leave the employment of Alion or such affiliate, provided that such employee was employed (or had an offer of employment) with Alion at the time Axxxx ceases to be employed by Alion; (ii) without Alion’s written permission, hire any such employee who was employed by Alion or Alion’s affiliates as of the effective date of Atefi’s termination of employment with Alion or who left employment with Alion or Alion’s affiliates coincident with, or within three (3) months prior to or after, the termination of Atefi’s employment with Alion; or (iii) knowingly permit such Seller's encourage to cease to work with Alion or its Affiliate's nameAlion’s affiliates any consultant then under contract with Alion or Alion’s affiliates. e. It is expressly understood and agreed that although Axxxx and Alion consider the restrictions contained in this Section 22(e) to be reasonable, including "The Pharm" if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any partother restriction contained in this letter agreement is an unenforceable restriction against you, combination the provisions of this Agreement will not be rendered void but will be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or derivation thereof, indicate to be used enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall notthis letter agreement is unenforceable, and shall ensure that none of its Affiliates shallsuch restriction cannot be amended so as to make it enforceable, enter into any sublease under nor make an assignment of such finding will not affect the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach enforceability of any of the restrictive covenants set forth in this Section 11.05other restrictions contained herein. (c) For purposes of this Section 11.05:

Appears in 1 contract

Samples: Employment Agreement (Alion Science & Technology Corp)

Non-Competition; Non-Solicitation. (a) During For so long as Buyer (or any Person deriving title to the Restrictive goodwill or ownership interest from Buyer) carries on the Business or a like Business, or if shorter, for a period of five (5) years after the Closing Date (collectively, the “Restricted Period”), Seller will and the Shareholders shall not, and shall cause its not permit any of their respective Affiliates to notor Related Persons to, directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Personindirectly, (i) in any manner participate or engage in or assist others in engaging in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined)Territory, (ii) have any direct or indirect ownership an interest in - 33 - any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant, or (iii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former client or customer of Seller and any Person that becomes a client or customer of the Business after the Closing Date), or any other than through Person who has a material business relationship with the ownership Business, to terminate or modify any such actual or prospective relationship. Notwithstanding the foregoing, Seller and Shareholders may own, directly or indirectly, solely as an investment, securities of 10any Person traded on any national securities exchange if Seller and Shareholders are not a Person who Controls, or a member of a group which Controls, such Person and does not, directly or indirectly, own 5% or less more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;. (b) With respect to each of During the File Buy StoresRestricted Period, Seller and Shareholders shall not, and shall ensure that none not permit any of its their Affiliates shallor Related Persons to, enter into directly or indirectly, solicit any sublease under nor make an assignment of person who is offered employment by Buyer pursuant to Section 6.1(e) or is or was employed in the Lease applicable to a File Buy Store if such sublease or assignment wouldBusiness during the Restricted Period, or could reasonably be expected to, result in a breach of encourage any of the restrictive covenants set forth in this Section 11.05such employee to leave such employment. (c) For purposes Notwithstanding anything to the contrary contained herein, the terms, conditions and restrictions contained in this Section 6.3 will exclude: (i) Lxx X. XxXxxxxx’x ownership of and performance of services for SCB Training Center, Inc., (ii) Cxxxx Xxxxxxxxxx’x ownership of and performance of services for CasCade Holding, Inc. and CasCade Belts, Inc. and (iii) Lxx X. XxXxxxxx’x hiring of Vxxxxxxx Xxxxxxx and Mxxx Xxxxxxx, provided, Mx. Xxxxxxx will be available to Buyer on part-time basis for up to 90 days after the Closing and for reasonable transition assistance thereafter, subject to her agreement to be so available. The activities of SCB Training Center, Inc., CasCade Holding, Inc. and CasCade Belts, Inc. shall not be expanded in a manner that would overlap with the Business in violation of this Section 11.056.3 beyond such overlap as exists as of the Closing Date, and for the avoidance of any doubt, there shall be no limitation whatsoever on training activities conducted by SCB Training Center, Inc.. (d) After the Closing Date, except as otherwise may be legally required, neither Seller nor Shareholders will disparage Buyer or Guarantor or any of their directors, officers, employees or agents, and neither Buyer nor Guarantor will disparage Seller or Shareholders. (e) If Seller or any Shareholder breaches, or threatens to commit a breach of, any of the provisions of this Section 6.3, Buyer shall have the following rights and remedies, each of which rights and remedies shall be independent of the others and severally enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to Buyer under law or in equity: (i) the right and remedy to have such provision specifically enforced by any court having jurisdiction, it being acknowledged and agreed that any such breach or threatened breach may cause irreparable injury to Buyer and that money damages may not provide an adequate remedy to Buyer; and (ii) the right and remedy to recover from the Seller all monetary damages suffered by Buyer as the result of any acts or omissions constituting a breach of this Section 6.3. (f) Seller and Shareholders acknowledge that the restrictions contained in this Section 6.3 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 6.3 should ever be adjudicated to exceed the time, geographic, product or service or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service or other limitations permitted by applicable Law. The covenants contained in this Section 6.3 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 1 contract

Samples: Asset Purchase Agreement (Iec Electronics Corp)

Non-Competition; Non-Solicitation. (a) During For a period of five (5) years commencing on the Restrictive Closing Date (the “Restricted Period”), Seller will Sellers shall not, individually, collectively or through any of their respective Affiliates or Representatives: (i) engage in or assist others in engaging in any business, license, or activity that creates, markets, sells or otherwise promotes beverages with a beauty focus, whether tangible or intangible, by use of social media, and shall cause its Affiliates brand advertisement agencies (the “Restricted Business”) in the United States of America (the “Territory”); (ii) have an interest in any Person that engages, directly or indirectly, in the Restricted Business in the Territory in any capacity, including as a partner, stockholder, director, officer, member, manager, employee, contractor, principal, agent, volunteer, intern, advisor, or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between the Company and promoters, customers or suppliers of the Company. Notwithstanding the above, a Seller may own, directly or indirectly, solely as an investment, securities of any Person: (x) traded on any national securities exchange if such Seller does not Control such Person and does not, directly or indirectly indirectly, own five percent (including as a member, agent, shareholder 5%) or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory ; or (ivy) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;that is an investment fund over which Sellers do not exercise control (b) With respect to each of During the File Buy StoresRestricted Period, Seller Sellers shall not, collectively or individually, and shall ensure that none not knowingly permit any of their respective Affiliates or Representatives to, directly or indirectly, hire or solicit any current or former employee of the Company or encourage any employee to leave the Company’s employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, however, nothing in this Section 5.02(b) shall prevent Seller or any of its Affiliates shallfrom hiring: (i) any employee terminated by the Company; or (ii) after one hundred eighty (180) days from the date of resignation, enter into any sublease under nor make an assignment of employee that has resigned from the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this Section 11.05Company. (c) For purposes Sellers acknowledge and agree that a breach or threatened breach of this Section 11.05:5.02 would give rise to irreparable harm to Buyer and the Company, for which monetary damages would not be an adequate remedy, and hereby agree that in the event of a breach or a threatened breach by Seller of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, or specific performance (without any requirement to post a bond). (d) Sellers jointly and severally acknowledge and agree that the restrictions contained in this Section 5.02 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. If any covenant contained in this Section 5.02 is ever be adjudicated to exceed the time, geographic, product or service or any other limitations permitted by applicable Law in any jurisdiction, or any Governmental Order, then any court is expressly empowered and directed to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service or other limitations permitted by applicable Law or such Governmental Order. The covenants contained in this Section 5.02 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 1 contract

Samples: Stock Purchase Agreement (Creatd, Inc.)

Non-Competition; Non-Solicitation. (a) During the Restrictive Period, Seller will not, and shall cause its Affiliates to not, directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner Shareholder acknowledges that during his employment relationship with, and through his involvement as a stockholder of, the Company, Shareholder has become familiar with trade secrets and other Confidential Information concerning the Company, and with investment opportunities relating to their respective businesses. Therefore, Shareholder agrees that for a period of five years following the date hereof (the “NonCompete Period”), he will not singly, jointly, or as a partner, member or stockholder directly, indirectly or beneficially own, manage, control, participate or engage in the ownership, management, operation, operation or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products render services for (as a consultant or services to or foradvisor), or provide financial or other assistance to a Restricted Business Competitive Business. Nothing in this Section will prohibit Shareholder from: (a) being employed by the Company or its Affiliates; or (b) being a passive owner of less than 5% of the outstanding stock of any company listed on a national securities exchange or actively traded in the Restricted Territory over-the-counter market, so long as Shareholder has no direct or indirect participation in the management of such company. (as hereinafter defined)ii) During the NonCompete Period, Shareholder shall not (i) directly or indirectly, either for himself or for any other person, business, partnership, association, firm, company or corporation, hire from the Company, or attempt to hire, divert or take away from the Company, any of the officers or employees of the Company in existence from time to time during his employment with the Company, (ii) have interfere with or attempt to interfere with, the relationship of the Company or its Affiliates, with any direct employee, customer or indirect ownership interest in - 33 - (other than through supplier of the ownership of 10% Company or less of any class of securities registered on a recognized stock exchange its Affiliates, or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's make any public statement or other public communication (or repeated and widespread private statements or communications) that is or are reasonably likely to materially damage the goodwill of the Company or its Affiliate's nameAffiliates, including "The Pharm" or knowingly take any partaction, combination directly or derivation thereofindirectly, to be used in connection interfere with any contractual or otherwise knowingly lend assistance (financial customer or otherwise) to any Person, in each case in any Restricted Business in supplier relationships of the Restricted Territory Company or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;Affiliates. (biii) With respect to each of Shareholder agrees and acknowledges that: (a) the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this Section 11.055.9 are reasonably limited in time and in all other respects, (b) the covenants set forth in this Section 5.9 are reasonably necessary for the protection of the Company, (c) the Purchaser would not have entered into this Agreement but for the covenants of the Shareholder contained herein, and (d) the covenants contained herein have been made in order to induce the Purchaser to enter into this Agreement. (civ) For purposes If, at the time of enforcement of this Section 11.05:5.9, a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under the 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 to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law. (v) The Shareholder recognizes and affirms that in the event of his breach of any provision of this Section 5.9, money damages would be inadequate and the Purchaser and the Company would have no adequate remedy at law. Accordingly, the Shareholder agrees that in the event of a breach or a threatened breach by the Shareholder of any of the provisions of this Section 5.9, the Purchaser and the Company, in addition and supplementary to other rights and remedies existing in their favor, may apply to any 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 hereof (without posting a bond or other security).

Appears in 1 contract

Samples: Stock Purchase Agreement (New York & Company, Inc.)

Non-Competition; Non-Solicitation. (a) During Seller acknowledges the Restrictive Periodcompetitive nature of the Business and accordingly agrees, Seller will not, and shall cause its Affiliates to not, directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each sale of the File Buy StoresPurchased Assets, including the goodwill of the Business, which Buyer considers to be a valuable asset, and in exchange for good and valuable consideration, that for a period of 36 months commencing on the Closing Date (the “Restricted Period”), Seller shall not, and shall ensure that none not permit any of its Affiliates shallcontrolled affiliates to, enter into directly or indirectly, (i) engage in or assist others in engaging in the Business anywhere in the world (the “Territory”), (ii) have an interest in any sublease under nor make an assignment Person that engages directly or indirectly in the Business in the Territory in any capacity, including as a partner, shareholder, director, member, manager, employee, principal, agent, trustee, or consultant, or (iii) cause, induce, or encourage any material actual or prospective client, customer, supplier, or licensor of the Lease applicable Business (including any existing or former client or customer of Seller 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. Notwithstanding the foregoing, Seller may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Seller is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own 5% or more of any class of securities of such Person. (b) During the Restricted Period, Seller shall not, and shall not permit any of its controlled affiliates to, directly or indirectly, hire or solicit any person who is, was, or becomes employed by the Buyer, or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a File Buy Store if general solicitation which is not directed specifically to any such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this Section 11.05employees. (c) For purposes Seller acknowledges that a breach or threatened breach of this Section 11.05:5.02 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Seller of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). (d) Seller acknowledges that the restrictions contained in this Section 5.02 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.02 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction or any Governmental Order, then any court is expressly empowered to reform such covenant in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law or such Governmental Order. The covenants and provisions contained in this Section 5.02 are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions of this Section 5.02, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 1 contract

Samples: Asset Purchase Agreement (NuZee, Inc.)

Non-Competition; Non-Solicitation. (a) During Seller acknowledges the Restrictive Periodcompetitive nature of the Business and accordingly agrees, Seller will not, and shall cause its Affiliates to not, directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each sale of the File Buy StoresPurchased Assets, including the goodwill of the Business, which Buyer considers to be a valuable asset, and in exchange for good and valuable consideration, that for a period of five (5) years commencing on the Closing Date (the "Restricted Period"), Seller shall not, and shall ensure that none not permit any of its Affiliates shallto, enter into directly or indirectly, (i) engage in or assist others in engaging in any sublease under nor make an assignment activity that is the same as, or similar to, the Business (the "Restricted Business") in the United States and other territories known to Seller to which Buyer expects to market its services with use of the Lease applicable Purchase Assets (the "Territory"); (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, director, member, manager, employee, principal, agent, trustee, or consultant; or (iii) cause, induce, or encourage any material actual or prospective client, customer, supplier, or licensor of the Business (including any existing or former client or customer of Seller 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. Notwithstanding the foregoing, Seller may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Seller is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own five percent (5%) or more of any class of securities of such Person. (b) During the Restricted Period, Seller shall not, and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any person who is or was employed in the Business during the Restricted Period, or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a File Buy Store if general solicitation which is not directed specifically to any such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth employees; provided that nothing in this Section 11.055.02(b) shall prevent Seller or any of its Affiliates from hiring (i) any employee whose employment has been terminated by Xxxxx; or (ii) after one hundred eighty (180) days from the date of termination of employment, any employee whose employment has been terminated by the employee. (c) For purposes Seller acknowledges that a breach or threatened breach of this Section 11.05:5.02 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Seller of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). (d) Seller acknowledges that the restrictions contained in this Section 5.02 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.02 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction or any Governmental Order, then any court is expressly empowered to reform such covenant in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law or such Governmental Order. The covenants contained in this Section 5.02 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 1 contract

Samples: Asset Purchase Agreement (KULR Technology Group, Inc.)

Non-Competition; Non-Solicitation. Sellers agree to certain restrictions on their future business activities as set forth in this Section 6.9 relating to any Acquired Company: (a) During Agreement not to Compete. (i) Each Seller other than Vlaams Innovatiefonds (Vinnof) CommVa., KMOFIN NV (LRM), and Allegro Investment Fund NV agrees that, except as otherwise provided herein, during the Restrictive Non‑Competition Period, Seller will not, and he or it shall cause its Affiliates to not, directly or indirectly (including indirectly, whether as a memberprincipal, agent, shareholder officer, director, employee, investor, consultant, stockholder or investor of any Person or in any other capacity)otherwise, either alone or in conjunction association with any other Person, except for the account of Buyer, its affiliates or the Acquired Companies: (iA) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operatecarry on, manage, join, assist, supportoperate or become engaged in, or provide products otherwise take part in, a Restricted Activity in a Restricted Area; or (B) be employed by or render services to or forto, or provide financial own, share in the earnings of, or invest in the stock, bonds or other assistance to securities of any Person engaged in a Restricted Business Activity in the a Restricted Territory (as hereinafter defined), Area. (ii) have any direct or indirect ownership interest in - 33 - Each of Vlaams Innovatiefonds (other than through Vinnof) CommVa., KMOFIN NV (LRM), and Allegro Investment Fund NV agrees that during the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;Non-Competition Period it: (bA) With respect to each will not appoint, nominate for appointment or vote in favor of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach appointment of any of the restrictive covenants set forth directors, officers, employees, agents or other representatives who have ever served, on its behalf or as its nominee, as a director of or an observer on the board of directors of any Acquired Company, as a director of, or an observer on or advisor to, the board of directors (or comparable governing body) of any Person that carries on, manages, operates, engages in, or otherwise takes part in, a Restricted Activity in this Section 11.05.a Restricted Area; and (cB) For purposes will cause the directors, officers, employees, agents or other representatives who have ever served, on its behalf or as its nominee, as a director of this Section 11.05:or an observer on the board of directors of any Acquired Company, not to disclose or otherwise communicate any confidential information relating to any Acquired Company to any Person that carries on, manages, operates, engages in, or otherwise takes part in, a Restricted Activity in a Restricted Area

Appears in 1 contract

Samples: Share Purchase Agreement (Key Technology Inc)

Non-Competition; Non-Solicitation. (a) During the Restrictive Period, Neither Seller will not, and shall cause its Affiliates to notshall, directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Personindirectly, (i) for a period of thirty (30) months commencing on the Closing Date with respect to the manufacture, sale, marketing or distribution of macaroni and cheese products and for a period of one (1) year commencing on the Closing Date with respect to the manufacture, sale, marketing or distribution of pancake, granola bars and any other products which are being manufactured, marketed, sold and distributed by the Company as of the Closing Date (collectively, the “Restricted Period”), engage in or assist others in engaging in the manufacture, sale, marketing or distribution of the aforementioned products (collectively, the “Business”) in the United States and Canada (the “Territory”); (ii) obtain or maintain any interest in any manner participate or engage entity that engages directly in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (in any active capacity, including as hereinafter defined)a partner, (ii) have any direct employee, principal, agent, or indirect ownership interest in - 33 - (other than through the ownership of 10% consultant; or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case intentionally interfere in any Restricted Business material respect with the business relationships (whether formed prior to or after the date of this Agreement) between the Company and customers or suppliers of the Company. Notwithstanding the foregoing, nothing in this Agreement shall be construed to prohibit either Seller from owning, directly or indirectly, solely as an investment, less than three percent (3%) of the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, issued and outstanding securities of any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away entity traded on any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;national securities exchange. (b) With respect to each During the period one (1) year from the Closing Date, neither Seller shall, directly or indirectly, hire or solicit any employee of the File Buy StoresCompany or encourage any such employee to leave such employment or hire any such employee who has left such employment, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable except pursuant to a File Buy Store if general solicitation which is not directed specifically to any such sublease or assignment wouldemployees; provided, or could reasonably be expected tohowever, result in a breach of any of the restrictive covenants set forth that nothing in this Section 11.056.01(b) shall be construed so as to prevent either Seller from hiring (i) any employee whose employment has been terminated by the Company or Buyer for cause or (ii) after one hundred eighty (180) business days from the date of termination of employment, any employee whose employment has been terminated by such employee. (c) For During the period one (1) year from the Closing Date, neither Seller shall, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Company or potential clients or customers of the Company for purposes of this Section 11.05:diverting their business or services from the Company.

Appears in 1 contract

Samples: Membership Interest Purchase Agreement (Creatd, Inc.)

Non-Competition; Non-Solicitation. (a) During For a period beginning on the Restrictive PeriodEffective Date and ending at the Closing, the Company shall not directly or indirectly, (i) engage in or assist others in engaging in any business for which a license is required under the MMFLA or MRTMA (the “Restricted Business”) in the State of Michigan (the “Territory”); (ii) have an interest in any entity, organization, or third party that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee, or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between the Company and customers or suppliers of the Company. Notwithstanding the foregoing, Seller will notmay own, directly or indirectly, solely as an investment, securities of any entity traded on any national securities exchange if Seller is not a controlling person of, or a member of a group that controls, such entity and shall cause its Affiliates to does not, directly or indirectly (including as a memberindirectly, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10own 5% or less more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;entity. (b) With respect to each of For a period beginning on the File Buy StoresEffective Date and ending on the date that is six months after the Closing Date, Seller shall not, and shall ensure that none not permit any of its Affiliates shallaffiliates to, enter into directly or indirectly, hire or solicit any sublease under nor make an assignment employee of the Lease applicable Buyer or the Company or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a File Buy Store if general solicitation that is not directed specifically to any such sublease or assignment wouldemployees; provided, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth that nothing in this Section 11.056.8(b) shall prevent Seller or any of its affiliates from hiring (i) any employee whose employment has been terminated by the Company or Buyer or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee. (c) For a period beginning on the Effective Date and ending on the date that is two years after the Closing Date, Seller shall not, and shall not permit any of its affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any retail clients or customers of the Company or potential retail clients or customers of the Company for purposes of diverting their business or services from the Company. (d) Seller acknowledges that a breach or threatened breach of this Section 11.05:6.8 would give rise to irreparable harm to Buyer for which monetary damages would not be an adequate remedy, so Seller hereby agrees that in the event of a breach or a threatened breach by Seller of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). (e) Seller acknowledges that the restrictions contained in this Section 6.8 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 6.8 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product, or service, or other limitations permitted by applicable law. The covenants contained in this Section

Appears in 1 contract

Samples: Option Agreement

Non-Competition; Non-Solicitation. (a) During the Restrictive Restricted Period, each Seller will and the Sellers’ Parent shall not, and shall cause not permit any of its Affiliates to to, directly or indirectly, (i) engage in or assist others in operating facilities or a network for wireless telecommunication in Peru; (ii) have an interest in any Person that directly or indirectly operates a facilities based wireless telecommunication network in Peru in any capacity, including as a partner, shareholder, or member; (iii) intentionally interfere with any business relationships between the Company, on the one hand, and its customers and suppliers, on the other hand, or (iv) market or sell wireless telecommunications services under the “Nextel” name in Peru. None of the Sellers, the Sellers’ Parent or any of their respective Affiliates are prohibited by this Section 7.15(a) from (x) owning, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if such owner is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly (including as a memberindirectly, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10own 5% or less more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable of such Person does not otherwise participate that engages in any of the activities that are described by the first sentence of this Section 7.15(a), (y) owning, directly or indirectly, up to a 15% equity interest in any partnership, joint venture or other Person (“Permissible Entity”) that engages in any of the activities that are described by the first sentence of this Section 7.15(a) or (z) entering into any (1) roaming agreements that allow subscribers who purchase services from an Affiliate of any Seller, which Affiliate must be located outside of Peru, to roam in Peru or (2) similar agreements with multi-national business customers that allow such customers who purchase services from an Affiliate of any Seller, which Affiliate must be located outside of Peru, to obtain such multi-national business services in Peru. For the avoidance of doubt, no third party that owns an equity interest in any Permissible Entity or any member, shareholder or owner of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, third party shall be deemed to be used in connection with an Affiliate of any of the Sellers or otherwise knowingly lend assistance (financial or otherwise) the Sellers’ Parent due to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete ownership of such equity interest for accounts or personnel within the Restricted Territory;purposes of this Section 7.15. (b) With respect to During the Restricted Period, each of Seller and the File Buy Stores, Seller Sellers’ Parent shall not, and shall ensure that none not permit any of its Affiliates shallto, enter into directly or indirectly, hire or solicit any sublease under nor make an assignment employee of the Lease applicable Company or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a File Buy Store if general solicitation which is not directed specifically to any such sublease or assignment would, or could reasonably be expected to, result employees. Nothing in a breach of this Section 7.15(b) shall prevent any of the restrictive covenants Sellers, the Sellers’ Parent or any of their respective Affiliates from hiring any employee whose employment with the Company has terminated or apply with respect to any of the seconded headquarters employees set forth in this Section 11.05on Schedule 7.15(b). (c) For purposes If any Seller or the Sellers’ Parent breaches, or threatens to commit a breach of, any of the provisions of this Section 11.05:7.15, the Purchasers and the Company shall have in addition to, and not in lieu of, any other rights and remedies available to the Purchasers or the Company the right and remedy to specific enforcement, it being acknowledged and agreed that any such breach or threatened breach may cause irreparable injury to each of the Purchasers and the Company and that money damages may not provide an adequate remedy to the Purchasers or the Company. (d) The Sellers and the Sellers’ Parent acknowledge that the restrictions contained in this Section 7.15 are reasonable and necessary to protect the legitimate interests of the Purchasers and constitute a material inducement to the Purchasers to enter into this Agreement and consummate the transactions contemplated by this Agreement. If any covenant contained in this Section 7.15 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 1 contract

Samples: Stock Purchase Agreement (Nii Holdings Inc)

Non-Competition; Non-Solicitation. (a) During In consideration of FECI undertaking to employ the Restrictive Executive under the terms provided for herein and to protect the FECI's valuable trade secrets and other business and professional information and its relationships with existing and prospective customers and suppliers, the Executive agrees that, except as is set forth below, for a period commencing on the Effective Date hereof and ending on the first anniversary of the date the Executive ceases to be employed by FECI (the "Non-Competition Period"), Seller will not, and the Executive shall cause its Affiliates to not, directly or indirectly (including as a memberindirectly, agent, shareholder either for himself or investor of any Person or in any other capacity)person, either own, manage, control, materially participate in, invest in, permit his name to be used by, act as consultant or advisor to, render material services for (alone or in conjunction association with any person, firm, corporation or other Personbusiness organization) or otherwise assist in any manner, any business which is a competitor of a substantial portion of the FECI's business at the date the Executive ceases to be employed by the FECI (a "Competitor"). Notwithstanding the foregoing, the restrictions set forth above shall immediately terminate and shall be of no further force or effect in the event of a default by FECI of the performance of any of the obligations hereunder, which default is not cured within ten (10) days after notice thereof. Nothing herein shall prohibit the Executive from being a passive owner of not more than five percent (5%) of the equity securities of an enterprise engaged in such business which is publicly traded, so long as he has no active participation in the business of such enterprise. (b) During the Non-Competition Period, the Executive shall not, directly or indirectly, (i) in any manner participate induce, solicit, recruit or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce hire or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divertrecruit or hire or aid others in inducing, take awaysoliciting, recruiting or hiring any employee of FECI or its subsidiaries to leave the employ of FECI, or attempt to solicit, divertin any way interfere with the relationship between FECI (including its subsidiaries) and an employee thereof except in the proper exercise of the Executive's authority, or take away (ii) in any tradeway interfere with the relationship between FECI (including its subsidiaries) and any customer, clientssupplier, customers, business, licensee or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this Section 11.05other business relation thereof. (c) For purposes If, at the time of enforcement of this Section 11.05:7, a court shall hold that the duration, scope, area or other restrictions stated herein are unreasonable under circumstances then existing, the parties agree that the maximum duration, scope, area or other restrictions reasonable under such circumstances shall be substituted for the stated duration, scope, area or other restrictions. (d) The covenants made in this Section 7 shall be construed as an agreement independent of any other provisions of this Agreement, and shall survive the termination of this Agreement. Moreover, the existence of any claim or cause of action of the Executive against FECI or any of its affiliates, whether or not predicted upon the terms of this Agreement, shall not constitute a defense to the enforcement of these covenants.

Appears in 1 contract

Samples: Employment Agreement (Florida East Coast Industries Inc)

Non-Competition; Non-Solicitation. (a) During For a period commencing on the Restrictive PeriodClosing Date and ending on, Seller will (x) in the case of clauses (i), (ii) and (iii) below, the second anniversary of the Closing Date and (y) in the case of clause (iv) below, the third anniversary of the Closing Date, (the "RESTRICTED PERIOD"), the Sellers' Representative shall not, and shall cause its Affiliates to notSubsidiaries (collectively, "RESTRICTED PERSONS") not to, directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, indirectly: (i) in any manner own, manage, operate, control or participate or engage in the ownership, management, operation, operation or control of, formor render services to, acquireany business, invest inwhether in corporate, financeproprietorship or partnership form or otherwise, own, operate, manage, join, assist, supportthat competes with the business of, or provide products provides services similar to the services provided by, the Company or services to any of its Subsidiaries (a "RESTRICTED BUSINESS"); PROVIDED, HOWEVER, that the restrictions contained in this Section 6.20(a)(i) shall not restrict the acquisition by the Sellers' Representative or forany of its Subsidiaries, directly or provide financial or other assistance to indirectly, of less than 5% of the outstanding capital stock of any publicly traded company engaged in a Restricted Business in the Restricted Territory (as hereinafter defined), Business; (ii) have take any direct action with the intention of diverting from the Company or indirect ownership interest in - 33 - (other than through any controlled Affiliate of the ownership Company any funds or investment accounts with respect to which the Company or any controlled Affiliate of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, Company is providing Investment Management Services; (iii) knowingly permit such Seller's solicit or its Affiliate's name, including "The Pharm" or attempt to solicit any part, combination or derivation thereofPerson to cease doing business with the Company who, to be used in connection with the knowledge (whether actual knowledge or otherwise knowingly lend assistance (financial or otherwiseknowledge that such Restricted Person should have possessed under the circumstances) to any of such Restricted Person, in each case in is or has been a customer, supplier, licensor, licensee or other business relation of the Company at any time (A) up to the date hereof or (B) during the applicable Restricted Business in the Restricted Territory or Period; or (iv) induce or induce, hire, employ, attempt to inducehire or employ or solicit any person employed by or providing consulting services to the Company or any of its controlled Affiliates or any person who was employed by or providing consulting services to the Company or any of its controlled Affiliates during the 18 months preceding such hiring or employment or attempted hiring or employment (excluding for all purposes of this Section 6.20(a)(iv), or assist anyone else to induce or attempt to inducesecretaries, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;drivers and persons holding similar positions). (b) With respect The covenants and undertakings contained in this Section 6.20 relate to each matters which are of the File Buy Storesa special, Seller shall not, unique and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to extraordinary character and a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach violation of any of the restrictive covenants set forth in terms of this Section 11.056.20 will cause irreparable injury to the Buyer, 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 6.20 will be inadequate. Therefore, the 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 6.20 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 6.20 are cumulative and in addition to any other rights and remedies which the Buyer may have hereunder or at law or in equity. (c) For purposes 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 11.05:6.20 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. (d) For the avoidance of doubt, "Restricted Persons" shall not be deemed to include any Person other than the Sellers' Representative and its Subsidiaries and shall not be deemed to include (by way of illustration and not limitation) Trian Fund Management, L.P. or any funds and accounts managed by it, or any other Affiliate of the Sellers' Representative that is not a Subsidiary of the Sellers' Representative.

Appears in 1 contract

Samples: Merger Agreement (Triarc Companies Inc)

Non-Competition; Non-Solicitation. (a) During For a period of five years commencing on the Restrictive Closing Date (the “Restricted Period”), Seller will the Member and each of the WLES Members (each, a “Non-compete Party”) shall not, and shall cause not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Business in the Territory except with respect to the Surviving Entity, Parent or their respective Subsidiaries; (ii) have an interest in any Person (other than the Surviving Entity or Parent) that engages directly or indirectly in the Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; (iii) intentionally interfere in any material respect with the business relationships (whether formed before or after the date of this Agreement) between the Surviving Entity, Parent or their Subsidiaries and customers or suppliers of the Surviving Entity, Parent or their Subsidiaries; or (iv) solicit or attempt to solicit, directly or indirectly, any of the customers or suppliers of the Surviving Entity, Parent or their subsidiaries for the purposes of diverting business or services from the Surviving Entity, Parent or their Subsidiaries. Notwithstanding the foregoing, each Non-compete Party may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if such Non-compete Party is not a controlling Person of, or such Non-compete Party of a group which controls, such Person and does not, directly or indirectly (including as a memberindirectly, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10own 5% or less more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;. (b) With respect to During the Restricted Period, each of the File Buy Stores, Seller Non-compete Party shall not, and shall ensure that none not permit any of its Affiliates shallto, enter into directly or indirectly, hire or solicit any sublease under nor make an assignment employee of the Lease applicable Surviving Entity, Parent or their Subsidiaries or encourage any such employee to a File Buy Store if leave such sublease employment or assignment would, or could reasonably be expected to, result in a breach of hire any of the restrictive covenants set forth such employee who has left such employment; provided that nothing in this Section 11.056.12(b) shall prevent any Non-compete Party or any of its Affiliates from hiring (i) any employee whose employment has been terminated by the Surviving Entity, Parent or their Subsidiaries; or (ii) after 180 calendar days from the date of termination of employment, any employee whose employment has been terminated by the employee; or shall prevent any Non-compete Party from making a general solicitation which is not directed specifically to any Company employees. (c) For purposes If a Non-compete Party breaches, or threatens to commit a breach of, any of the provisions of this Section 11.056.12, Parent and the Surviving Entity shall have the right and remedy to have such provision specifically enforced by any court having competent jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to each of Parent, the Surviving Entity or their Subsidiaries and that money damages will not provide an adequate remedy. The foregoing rights and remedies shall be in addition to, and not in lieu of, any other rights and remedies available to Parent and the Surviving Entity under Law or in equity: (d) Each Non-compete Party acknowledges that the restrictions contained in this Section 6.12 are reasonable and necessary to protect the legitimate interests of the Company and constitute a material inducement to Parent and Merger Sub to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 6.12 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 6.12 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 1 contract

Samples: Merger Agreement (Universal Business Payment Solutions Acquisition Corp)

Non-Competition; Non-Solicitation. Executive and the Company agree to the non-competition and non-solicitation provisions of this Article IV in consideration for the Confidential Information provided by the Company to Executive pursuant to Article II of this Agreement, to protect the trade secrets and confidential information of the Company or its affiliates disclosed or entrusted to Executive by the Company or its affiliates or created or developed by Executive for the Company or its affiliates, to protect the business goodwill of the Company or its affiliates developed through the efforts of Executive and/or the business opportunities disclosed or entrusted to Executive by the Company or its affiliates and as an additional incentive for the Company to enter into this Agreement and provide Severance Benefits. (a) During Subject to the Restrictive Periodexceptions set forth in Section 4.2(b) below, Seller Executive expressly covenants and agrees that during the Prohibited Period (i) Executive will refrain from carrying on or engaging in, directly or indirectly, any Competing Business in the Restricted Area and (ii) Executive will not, and shall Executive will cause its Affiliates to notExecutive’s affiliates not to, directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, financeindirectly, own, manage, operate, manage, join, assistbecome an employee of, supportpartner in, owner or member of (or an independent contractor to), control or participate in, be connected with or loan money to, sell or lease equipment or property to, or provide products or services to or forotherwise be affiliated with any business, or provide financial individual, partnership, firm, corporation or other assistance to entity which engages in a Restricted Competing Business in the Restricted Territory Area. (as hereinafter defined)b) Notwithstanding the restrictions contained in Section 4.2(a) above, (ii) have Executive or any direct or indirect ownership interest in - 33 - (other of Executive’s affiliates may own an aggregate of not more than through 2% of the ownership of 10% or less outstanding stock of any class of securities registered any corporation engaged in a Competing Business, if such stock is listed on a recognized stock national securities exchange or dealer quotation system provided the applicable Person does not otherwise participate regularly traded in the activities over-the-counter market by a member of a national securities exchange, without violating the provisions of Section 4.2(a) above, provided that neither Executive nor any of Executive’s affiliates has the power, directly or indirectly, to control or direct the management or affairs of any such corporation and is not involved in the management of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this Section 11.05corporation. (c) For purposes Executive further expressly covenants and agrees that during the Prohibited Period, Executive will not, and Executive will cause Executive’s affiliates not to (i) engage or employ, or solicit or contact with a view to the engagement or employment of, any person who is an officer or employee of the Company or any of its affiliates or (ii) canvass, solicit, approach or entice away or cause to be canvassed, solicited, approached or enticed away from the Company or any of its affiliates any person who or which is a customer of any of such entities during the period during which Executive is employed by the Company. (d) The restrictions contained in this Section 11.05:4.2 shall not apply to any product or service that the Company provided during Executive’s employment but that the Company no longer provides at Executive’s Termination of Employment. (e) Before accepting employment with any other person or entity while employed by the Company during the Prohibited Period, Executive will inform such person or entity of the restrictions contained in this Article IV.

Appears in 1 contract

Samples: Participation Agreement (Extraction Oil & Gas, Inc.)

Non-Competition; Non-Solicitation. (a) During Except as set forth in Section 3 of the Restrictive Transaction Services Agreement and except for the fulfillment of orders underlying Non-Novation Events as contemplated by Section 2.06 and Section 6.14, for a period of three (3) years commencing on the Closing Date (the “Non-Compete Period”), Seller will Sellers and Member shall not, and shall cause its not permit any of their Affiliates to, directly or indirectly, and whether or not for compensation, (i) engage in or assist others in engaging in the Business in the Territory; or (ii) have an interest in any Person that engages directly or indirectly in the Business in the Territory in a capacity as a partner, shareholder, member, officer, director, employee, principal, agent, trustee or consultant; and for a period of three (3) years commencing on the Closing Date (the “Non-Solicitation Period”), Sellers and Member shall not, and shall not permit any of their Affiliates to, directly or indirectly, and whether or not for compensation, cause, induce or encourage any Customer, supplier or licensor of the Business to terminate or modify any relationship with Buyer. Notwithstanding the foregoing, Sellers and Member may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if such Seller or Member is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly indirectly, own three percent (including as a member, agent, shareholder 3%) or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less more of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in . For the Restricted Territoryavoidance of doubt, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be the term “Business” as used in connection with this Agreement, shall not include the business of direct-to-consumer or otherwise knowingly lend assistance (financial the related retail distribution of vitamins, minerals or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory;dietary supplements. (b) With respect to each of During the File Buy StoresNon-Solicitation Period, Seller Sellers and Member shall not, and shall ensure that none not permit any of its their Affiliates shallto, enter into directly or indirectly, hire or solicit any sublease under nor make an assignment of Transferred Employee or any other person who is employed by Buyer during the Lease applicable to a File Buy Store if such sublease or assignment wouldNon-Solicitation Period, or could reasonably encourage any such employee to leave such employment; provided, however, that Sellers, Member and their respective Affiliates shall be expected to, permitted to (i) hire any Transferred Employee or any other person who is employed by Buyer during the Non-Solicitation Period who is terminated by Buyer other than as a result in of a breach by a Seller or Member of any of the restrictive covenants set forth in this Section 11.056.07(b) and (ii) hire any Transferred Employee or any other person who is employed by Buyer during the Non-Solicitation Period after the 180 day period following such employee’s voluntary termination of employment with Buyer; provided, however, that Rxxx Xxxxx shall be permitted to provide services to Stain Away LLC, an Affiliate of Sellers, so long as the performance of such services do not interfere in any material respect with his performance of services to Buyer. (c) For purposes Sellers and Member acknowledge that a breach or threatened breach of this Section 11.05:6.07 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by a Seller or Member of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to seek equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond or other security). (d) Sellers and Member acknowledge that the restrictions contained in this Section 6.07 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 6.07 should ever be adjudicated to exceed the time, geographic, product or service or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service or other limitations permitted by applicable Law. The covenants contained in this Section 6.07 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 1 contract

Samples: Asset Purchase Agreement (Twinlab Consolidated Holdings, Inc.)

Non-Competition; Non-Solicitation. (a) During Excluding the Restrictive field of Ophthalmology, for a period of ten (10) years commencing on date hereof (the "Restricted Period, Seller will not, and shall cause its Affiliates to not, directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity"), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined), (ii) have any direct or indirect ownership interest in - 33 - (other than through the ownership of 10% or less of any class of securities registered on a recognized stock exchange or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall not, and shall ensure that none not permit any of its Affiliates shallto, enter into directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any sublease under nor make an assignment Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between the Company and customers or suppliers of the Lease applicable to Company. Notwithstanding the foregoing, Seller may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Seller is not a File Buy Store if such sublease or assignment wouldcontrolling Person of, or could reasonably be expected a member of a group which controls, such Person and does not, directly or indirectly, own five percent (5%) or more of any class of securities of such Person. (b) During the Restricted Period, Seller shall not, and shall not permit any of its Affiliates to, result in a breach of directly or indirectly, hire or solicit any employee of the restrictive covenants set forth Company or encourage any such employee to leave such employment or hire any such employee who has left such employment; provided, that nothing in this Section 11.055.04(b) shall prevent Seller or any of its Affiliates from hiring (i) any employee whose employment has been terminated by the Company or Buyer or (ii) after two (2) years from the date of termination of employment, any employee whose employment has been terminated by the employee. (c) For During the Restricted Period, Seller shall not, and shall not permit any of its Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Company or potential clients or customers of the Company for purposes of diverting their business or services from the Company. (d) Seller acknowledges that a breach or threatened breach of this Section 11.05:5.04 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Seller of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). (e) Seller acknowledges that the restrictions contained in this Section 5.04 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.04 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.04 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

Appears in 1 contract

Samples: Stock Purchase Agreement (ERBA Diagnostics, Inc.)

Non-Competition; Non-Solicitation. Employee and Extraction agree to the non-competition and non-solicitation provisions of this Article VIII in consideration for the Confidential Information provided by Extraction to Employee pursuant to Article VI of this Agreement, to protect the trade secrets and confidential information of the Company or its affiliates disclosed or entrusted to Employee by the Company or its affiliates or created or developed by Employee for the Company or its affiliates, to protect the business goodwill of the Company or its affiliates developed through the efforts of Employee and/or the business opportunities disclosed or entrusted to Employee by the Company or its affiliates and as an additional incentive for Extraction to enter into this Agreement. (a) During Subject to the Restrictive Periodexceptions set forth in Section 8.2(b) below, Seller Employee expressly covenants and agrees that during the Prohibited Period (i) Employee will refrain from carrying on or engaging in, directly or indirectly, any Competing Business in the Restricted Area and (ii) Employee will not, and shall Employee will cause its Affiliates to notEmployee’s affiliates not to, directly or indirectly (including as a member, agent, shareholder or investor of any Person or in any other capacity), either alone or in conjunction with any other Person, (i) in any manner participate or engage in the ownership, management, operation, or control of, form, acquire, invest in, financeindirectly, own, manage, operate, manage, join, assistbecome an employee of, supportpartner in, owner or member of (or an independent contractor to), control or participate in, be connected with or loan money to, sell or lease equipment or property to, or provide products or services to or forotherwise be affiliated with any business, or provide financial individual, partnership, firm, corporation or other assistance to entity which engages in a Restricted Competing Business in the Restricted Territory Area. (as hereinafter definedb) Notwithstanding the restrictions contained in Section 8.2(a), (ii) have Employee or any direct or indirect ownership interest in - 33 - (other of Employee’s affiliates may own an aggregate of not more than through 2% of the ownership of 10% or less outstanding stock of any class of securities registered any corporation engaged in a Competing Business, if such stock is listed on a recognized stock national securities exchange or dealer quotation system provided the applicable Person does not otherwise participate regularly traded in the activities over-the-counter market by a member of a national securities exchange, without violating the provisions of Section 8.2(a), provided that neither Employee nor any of Employee’s affiliates has the power, directly or indirectly, to control or direct the management or affairs of any such corporation and is not involved in the management of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induce, or assist anyone else to induce or attempt to induce, any customer within the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall not, and shall ensure that none of its Affiliates shall, enter into any sublease under nor make an assignment of the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this Section 11.05corporation. (c) For purposes Employee further expressly covenants and agrees that during the Prohibited Period, Employee will not, and Employee will cause Employee’s affiliates not to (i) engage or employ, or solicit or contact with a view to the engagement or employment of, any person who is an officer or employee of the Company or any of its affiliates or (ii) canvass, solicit, approach or entice away or cause to be canvassed, solicited, approached or enticed away from the Company or any of its affiliates any person who or which is a customer of any of such entities during the period during which Employee is employed by the Employer. (d) The restrictions contained in Section 8.2 shall not apply to any product or service that the Company or the Employer provided during Employee’s employment but that the Company or the Employer no longer provides at the Date of Termination. (e) Before accepting employment with any other person or entity while employed by the Employer during the Prohibited Period, the Employee will inform such person or entity of the restrictions contained in this Section 11.05:Article VIII.

Appears in 1 contract

Samples: Employment Agreement (Extraction Oil & Gas, Inc.)

Non-Competition; Non-Solicitation. The Executive agrees that if the Executive’s employment is terminated by the Company for Cause or the Executive terminates such employment without Good Reason, that for a one (1) year period following the termination date: (a) During The Executive shall not engage in any business which is competitive with the Restrictive Periodbusiness of the Company or any of its subsidiaries as of the termination date. For the purposes of this Section 8, Seller will nota business shall be deemed “competitive” if it consists of or includes any type or line of business engaged in by the Company or any of its subsidiaries as of the date of such termination and which is conducted, and in whole or in part, within a one-hundred (100) mile radius of the Company’s principal executive headquarters as of the date of such termination. For purposes of this Agreement, the Executive shall cause its Affiliates be deemed to not“engage in a business” if he: (i) participates, directly or indirectly (including indirectly, in such business as a memberdirector, agentofficer, shareholder stockholder, employee, salesman, partner or individual proprietor; (ii) acts as a paid consultant, representative or advisor to such business; (iii) participates in such business as an investor (whether through loans, contributions to capital or otherwise) or has a controlling influence over such business; or (iv) permits his name to be used by or in connection with such business, provided that nothing herein contained shall be deemed to preclude the purchase of securities that are listed on a national securities exchange of any Person entity that is competitive with the Company or in any other capacity)of its subsidiaries, either alone provided that the Executive may not beneficially own five percent (5%) or in conjunction with more of any other Personclass of such securities. (b) The Executive will not directly, or indirectly through another person or entity, (i) solicit any employee of the Company or its subsidiaries to leave the employ of the Company or its subsidiaries, or in any manner participate way interfere with the relationship between the Company or engage in its subsidiaries, on the ownershipone hand, managementand any employee thereof, operation, or control of, form, acquire, invest in, finance, own, operate, manage, join, assist, support, or provide products or services to or for, or provide financial or on the other assistance to a Restricted Business in the Restricted Territory (as hereinafter defined)hand, (ii) have hire any direct person who was an employee of the Company or indirect ownership interest in - 33 - its subsidiaries until one (other than through 1) year after such individual’s employment relationship with the ownership of 10% Company or less of any class of securities registered on a recognized stock exchange its subsidiaries has been terminated or dealer quotation system provided the applicable Person does not otherwise participate in the activities of such Person) a Person that operates a Restricted Business in the Restricted Territory, (iii) knowingly permit such Seller's or its Affiliate's name, including "The Pharm" or any part, combination or derivation thereof, to be used in connection with or otherwise knowingly lend assistance (financial or otherwise) to any Person, in each case in any Restricted Business in the Restricted Territory or (iv) induce or attempt to induceinduce any customer, supplier or other business relation of the Company or its subsidiaries to cease doing business with the Company or its subsidiaries, or assist anyone else to induce in any way interfere with the relationship between any such customer, supplier or attempt to inducebusiness relation, any customer within on the Restricted Territory to reduce or discontinue its business or solicit, divert, take away, or attempt to solicit, divert, or take away any trade, clients, customers, business, or goodwill or otherwise compete for accounts or personnel within the Restricted Territory; (b) With respect to each of the File Buy Stores, Seller shall notone hand, and shall ensure that none of the Company or its Affiliates shallsubsidiaries, enter into any sublease under nor make an assignment of on the Lease applicable to a File Buy Store if such sublease or assignment would, or could reasonably be expected to, result in a breach of any of the restrictive covenants set forth in this Section 11.05other hand. (c) For purposes of this Section 11.05:

Appears in 1 contract

Samples: Employment Agreement (Agree Realty Corp)