Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(b), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person): (i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere in the world, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and (ii) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies. (b) 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Person. (c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 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) Subject to Section 7.5(b)The Parties agree that, as a material inducement to Purchaser to enter into this Agreementpart of the consideration for the payment of the Purchase Price and completion of the transactions contemplated herein by the Purchaser, Seller shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four two (42) years following the Closing Date, undertakeneither of the Seller, manage, participate in, carry on or be engaged in, or in the Guarantor nor any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thatof their respective Affiliates will: (i) engage, directly or indirectly, undertakes, manages, participates in, carries on in any activity similar to or is engaged in, any Competing that would compete with the Business Activities anywhere in Europe and in the worldform and within the scope as the Business is conducted at Closing, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
or (ii) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage have an interest in any Person engaged in any activity similar to or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract that would compete with any member of the Senior Management of the Business to perform services other than for in Europe and in the benefit of Purchaser or form and within the Acquired Companies or (B) for a period of two (2) years following scope as the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) 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 Business is conducted 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior theretoClosing; (iii) continuing to engage intentionally interfere in any material respect with the business relationships (other than the Business) that Seller whether formed prior to or any of its Affiliates (other than the Acquired Companies) engages in as of after the date of this Agreement, including ) between the operations set forth on Schedule 7.5(b)(iii) Purchaser and customers or suppliers of the Seller Disclosure SchedulePurchaser or the Business; (iv) holding as a passive investment not more than five percent (5%) solicit any employee of the outstanding voting securities Purchaser, including the Employees to be Transferred, or encourage any such employee to leave such employment, provided that this shall not restrict the Seller or any Affiliate of the Seller from using general advertisements that are not directly targeted at any company (whether public or private) that is primarily engaged in Competing Business Activitiessuch employee; or (v) acquiring directly or indirectly, solicit or entice, or attempt to solicit or entice, any 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 indirectly, participations in a single transaction 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 series the respective Affiliate is excluded from any control over the management of related transactionssuch other business. For the avoidance of doubt, this Non-Competition Clause does not apply to: (a) all U.S. activities of the Seller, the Guarantor or any of its affiliates; (b) any Person that is, or has a subsidiary, division, group, franchise or segment that is, engaged in any Competing Business Activity and, following such acquisition, actively engaging in any such Competing Business Activity, so long as for worldwide sales by the most recent fiscal year ended prior to the date of such acquisitionSeller, the revenues derived from the Competing Business Activities Guarantor or any of its affiliates of any sawmill-products that were less than fifteen percent (15%) of the total consolidated revenues of such Person.
not manufactured in Europe; (c) 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 expressly acknowledges and the Guarantor each acknowledge that (i) each of the restrictions contained in this Section 7.5 § 16.5 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, the legitimate interests of the Purchaser and value of, constitute a material inducement to the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) Purchaser to enter into this Agreement and consummate 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 covenantherein.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Mercer International Inc.)
Non-Competition; Non-Solicitation. (a) Subject In order for the Buyer to Section 7.5(b)have and enjoy the full benefit of the Business, and as a material inducement to Purchaser 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 shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or Affiliate, in partnership or conjunction with or forwith, or as a an employee, officer, director, manager, member, owner, consultant or agent of, any other Person):
(i) and shall cause its controlled Affiliates to not, for a period of four five (45) years following commencing on the Closing Date, undertake, manage, participate in, or carry on or be engaged or have any financial or other interest in, or in any other manner own, operate, or, with respect to any Competing Business Activities, advise, advise or assist or consult with, or have an interest in, any other Person thatin connection with the operation of, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing a Restricted Business Activities anywhere in the world; provided, including as 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 partner, shareholder, member, employee, principal, agent, trustee or consultant; andRestricted Business;
(ii) the Seller shall not, directly or indirectly (Awhether 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 three five (35) years following 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 attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule its Affiliates (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with including any member of the Senior Management Person who has been a customer of the Business at any time during the period of 12 months before the Closing) to perform services other than alter, reduce or terminate its business relationship with the Buyer or any of its Affiliates for the direct or indirect benefit of Purchaser any Restricted Business; and
(iv) the Seller shall not, directly or the Acquired Companies indirectly (whether by itself, through an Affiliate, in partnership or (Bconjunction 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 two five (25) years following commencing on the Closing Date, solicituse any of the machinery, enticeequipment 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, encourage with respect to any transfer (in whole or influencein 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 attempt to solicitas an employee, enticeofficer, encourage director, manager, member, owner, consultant or influence, or attempt to solicit, entice, encourage or influenceagent of, any other Person) and shall cause its Affiliates to not, use any of such Non-Transferred Employee to resign or otherwise leave Brainerd Assets in a manner that is competitive with the employ business of Purchaser or the Acquired Companies or otherwise hireBuyer and/or any of its Affiliates and its and their respective successors, employ, engage or contract with any Transferred Employee to perform services other than for the benefit of Purchaser or the Acquired Companiesassigns and transferees.
(b) Notwithstanding Section 7.5(a)(ii7.4(a), Sellers and their Affiliates none of the following activities shall not be prohibited from or restricted in any way with respect to: constitute a violation of Section 7.4(a): (i) advertising the advertisement of job openings by use of newspapers, magazines, the Internet internet and other media not specifically directed at individual Transferred Employees prospective employees, consultants, or hiring any such Transferred Employees as a result thereofindependent contractors; (ii) hiring the solicitation or soliciting hire of any Transferred Employee who has terminated employment with Purchaser, the Acquired Companies or any Affiliate thereof, at least nine (9) months prior to the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaserthe Buyer after the Closing Date; provided, that any such terminated Transferred Employee was not terminated by the Acquired Companies Buyer due to any action or any Affiliate thereofinaction constituting cause (such as gross misconduct, so long as there was no solicitation prohibited hereunder by Seller material violations of the policies of the Buyer and its Affiliates, or its Affiliates prior theretowillful failure to perform the employee’s duties and responsibilities); or (iii) continuing to engage in any business (other holding less than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) % of the outstanding voting securities of any class of any publicly-traded securities of a company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such PersonRestricted Business.
(c) Notwithstanding Section 7.4(a)(i) and Section 7.4(a)(iii), in the event of a Change of Control or sale of all or substantially all of the assets of the Seller expressly acknowledges that or the Seller Parent to a Person who is (i) each not an Affiliate of the restrictions contained Seller Parent and (ii) engaged in this the Restricted Business prior such acquisition, nothing shall prevent such Person from engaging in the activities described in Section 7.5 are reasonable in all respects 7.4(a)(i) and Section 7.4(a)(iii) following such acquisition.
(d) Notwithstanding anything to the contrary set forth herein (including Section 13.10), in the event of a breach of any of the provisions of Section 7.4(a) (the “Restrictive Covenants”):
(i) 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 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 subject matter, geographical scope and time period) and the operation of the Restrictive Covenant in the particular jurisdiction in which such restrictions are necessary to protect Purchaser’s interest in, and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller adjudication is primarily responsible for the creation of such value, made; and
(iii) the transactions contemplated by this Agreement constitute good, valid parties acknowledge and binding consideration agree that the Restrictive Covenants are necessary for Seller’s obligations, covenants the protection and agreements contained in this Section 7.5 and (iv) Purchaser would not have entered into this Agreement or any preservation of the transactions contemplated hereby without value and 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 goodwill 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 Business and the geographic coverage Buyer’s businesses and are reasonable and valid in geographical and temporal 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 covenantin all other respects.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Wausau Paper Corp.)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(b), as a material inducement to Purchaser to enter into this Agreement, Seller The Participant shall not, and at any time during the Participant’s employment or service with the Company or during the 12 month period following the termination thereof for any reason (the “Restricted Period”), directly or indirectly engage in, have any equity interest in, or manage or operate any Person, firm, corporation, partnership, business, or entity (whether as director, officer, employee, agent, representative, partner, security holder, consultant, or otherwise) that engages (either directly or through any subsidiary or Affiliate thereof) in any business or activity that competes with any of the businesses of the Company or any of its Affiliates; provided, that upon a sale, transfer, or other disposition of all or substantially all of the Common Stock, business, or assets of the Company to an entity that is not an Affiliate of the Company, the restrictions described in this Section 8(a) shall cause its Affiliates no longer apply. Notwithstanding the foregoing, the Participant shall be permitted to acquire a passive stock or equity interest in such a business whose stock or equity interests are publicly traded on a national securities exchange, provided that the stock or other equity interest acquired is not tomore than five percent of the outstanding interest in such business.
(b) The Participant shall not, at any time during the Restricted Period, directly or indirectly (whether by itselfi) solicit, through an Affiliate or in partnership or conjunction with or forinduce, or as a memberattempt to solicit or induce any officer, ownerdirector, consultant employee, or agent independent contractor of the Company or any of its direct or indirect subsidiaries or Affiliates, to terminate his or her relationship with, or to leave the employ or service of, the Company or any such subsidiary or Affiliate, or to interfere in any way with the relationship between the Company or any such subsidiary or Affiliate, on the one hand, and any officer, director, employee, or independent contractor thereof, on the other Person):
hand, (iii) for hire (or otherwise engage in a period service relationship) any Person (in any capacity whether as an officer, director, employee, or consultant) who is or at any time was an officer, director, employee, or consultant of four the Parent or any of its direct or indirect subsidiaries until six months after such individual’s relationship (4whether as an officer, director, employee, or consultant) years following with the Closing DateCompany or such subsidiary or Affiliate has ended, undertakeor (iii) induce or attempt to induce any customer, managesupplier, participate inprospect, carry on licensee, or be engaged inother business relation of the Company or any of its direct or indirect subsidiaries or Affiliates to cease doing business with the Company or such subsidiary of Affiliate, or in any manner ownway interfere with the relationship between any such customer, operatesupplier, orprospect, with respect to any Competing Business Activities, advise, assist or consult withlicensee, or have an interest inbusiness relation, any on the one hand, and the Company or such subsidiary or Affiliate, on the other Person that, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere in the world, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
(ii) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personhand.
(c) Seller expressly acknowledges In the event that (i) each the terms of the restrictions contained in this Section 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 8 shall be determined 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 to be unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of its being too extensive in any of the foregoing covenants is too lengthy or the geographic coverage or scope of any of the covenants is too broadother respect, the restrictive time period it will be deemed interpreted to extend only over the maximum period of time for which it may be enforceable, over the longest period permissible under applicable Legal Requirement and maximum geographical area as to which it may be enforceable, or to the geographic coverage and scope will maximum extent in all other respects as to which it may be deemed to comprise the largest coverage and scope permissible under applicable Legal Requirements. With respect to each restrictive covenantenforceable, the contemplated restricted period shall be extended during the term of any breach of all as determined by such restrictive covenantcourt in such action.
Appears in 2 contracts
Samples: Restricted Stock Unit Award Agreement (Hexion Inc.), Performance Stock Unit Award Agreement (Hexion Inc.)
Non-Competition; Non-Solicitation. a. Except as prohibited by law, the Participant agrees that during his or her employment with the Company or its Affiliates, and 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 (a) Subject to Section 7.5(bincluding indirectly through a debt, equity investment, or otherwise), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates not provide services to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent ofbe employed by, any other Person):
person or entity engaged in any business that is (i) for located in a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, region with respect to which the Participant had substantial responsibilities while employed by the Company or its 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 Competing Business Activities, advise, assist prospective business to be developed or consult withacquired that was proposed at the date of termination), or have an interest in, (B) any other Person thatbusiness 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, undertakes, manages, participates in, carries on his or is engaged in, any Competing Business Activities anywhere in the world, including as a partner, shareholder, member, employee, principal, agent, trustee her own behalf or consultant; and
(ii) (A) for a period on behalf of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) Notwithstanding Section 7.5(a)(ii), Sellers and their Affiliates shall not be prohibited from or restricted in any way with respect to: another (i) advertising job openings by use solicit, recruit, aid or induce any employee 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller Company or any of its Affiliates to leave their employment with the Company or its Affiliates in order to accept employment with or render services to another person or entity unaffiliated with the Company or its Subsidiaries, or hire or knowingly take any action to assist or aid any other person or entity in identifying or hiring any such employee, or (ii) solicit, aid, or induce any customer of the Company or 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 than persons or entity in identifying or soliciting any such customer, or (iii) otherwise interfere with the Acquired Companiesrelationship of the Company or any of its Subsidiaries with any of its employees, customers, agents, or representatives.
c. Irreparable injury will result to the Company, and to its business, in the event of a breach by the Participant of any of the 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) engages 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 Award to be executed by one of its authorized officers as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Person.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 7.5 are reasonable in all respects (including with respect to subject matter, geographical scope grant. Xxxxxx X. Xxxxxxxxx Executive Vice President 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.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) Subject to Section 7.5(b), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates not to, directly or indirectly For the two (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i2) for a year period of four (4) years immediately following the Closing DateDate (the “Restricted Period”), undertake, manage, participate in, carry on or be engaged in, or in no Restricted Party shall and no Restricted Party shall permit any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thatof its Affiliates to, directly or indirectly, undertakes, manages, participates in, carries on (i) engage in or is engaged in, any Competing Business Activities 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 worldworld (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 trustee, lender or consultant; and
or (iiiii) (A) for a period of three (3) years following the Closing Datecause, solicit, entice, encourage or influenceinduce, or attempt to solicitencourage any material actual or prospective client, enticecustomer, encourage or influencesupplier, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any member of the Senior Management licensor of the Business to perform services other than for (including any existing or former client or customer of Seller and any Person that becomes a client or customer of the benefit of Purchaser or Business after the Acquired Companies or (B) for a period of two (2) years following the Closing Date, solicit, entice, encourage or influenceClosing), or attempt any other Person who has a material business relationship with the Business, to solicitterminate or modify any such actual or prospective relationship. Notwithstanding the foregoing, enticea Restricted Party may own, encourage directly or influenceindirectly, 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 attempt to solicita member of a group which controls, enticesuch Person and does not, encourage directly or influenceindirectly, own five percent (5%) or more of any Transferred Employee to resign or otherwise leave the employ class of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any Transferred Employee to perform services other than for the benefit securities of Purchaser or the Acquired Companiessuch Person.
(b) Notwithstanding During the Restricted Period, no Restricted Party shall and no Restricted Party shall 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 general solicitation which is not directed specifically to any such employees; provided that nothing in this Section 7.5(a)(ii), Sellers and 5.02(b) shall prevent the Restricted Parties or any of their Affiliates shall not be prohibited from or restricted in any way with respect to: hiring (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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or employee whose employment has been terminated by Purchaser, the Acquired Companies Buyer; or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iiiii) continuing to engage in any business after one hundred eighty (other than the Business180) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of days from the date of this Agreementtermination of employment, including any employee whose employment has been terminated by the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personemployee.
(c) Seller expressly Each Restricted Party acknowledges that a breach or threatened breach of this Section 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 (iwithout any requirement to post bond).
(d) each of Each Restricted Party acknowledges that the restrictions contained in this Section 7.5 6.02 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, the legitimate interests of Buyer and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 and (iv) Purchaser would not have entered into this Agreement 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 of Governmental Order, then any court is expressly empowered to reform such covenant in such jurisdiction to the transactions contemplated hereby without the restrictions maximum time, geographic, product or service, or other limitations permitted by applicable Law or such Governmental Order. The covenants contained in this Section 7.5 6.02 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Kintara Therapeutics, Inc.), Asset Purchase Agreement (CohBar, Inc.)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(b)The Restricted Beneficial Owner hereby agrees that, as a material inducement to Purchaser to enter into this Agreementduring the Restricted Period, Seller he shall not, and shall cause its Affiliates not permit any of his respective Affiliates, to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person)::
(i) for engage directly or indirectly in Competition in any Restricted Territory; provided, however, that the Restricted Beneficial Owner may, without violating this Section 5.04(a)(i), be employed by a period of four Person that engages in Competition in a Restricted Territory so long as the Restricted Beneficial Owner’s employment, duties and responsibilities are not substantially similar to or directly relate to the Business; or
(4ii) years following the Closing Datebecome an officer, undertakedirector, managestockholder, participate insole proprietor, carry on owner, partner, member, or be engaged investor in, or in otherwise acquire or hold (of record, beneficially or otherwise) any manner own, operate, or, with respect to any Competing Business Activities, advise, assist direct or consult with, or have an indirect interest in, any other Person thatthat engages directly or indirectly in Competition in any Restricted Territory; provided, however, that the Restricted Beneficial Owner may, without violating this Section 5.04(a)(ii), own, as a passive investment, shares of capital stock of a publicly-held corporation that engages in Competition if (i) such shares are actively traded on an established national securities market in the United States or in a foreign jurisdiction, (ii) the number of shares of such corporation’s capital stock that are owned beneficially (directly or indirectly, undertakes, manages, participates in, carries on ) by the Restricted Beneficial Owner and the number of shares of such corporation’s capital stock that are owned beneficially (directly or is engaged in, any Competing Business Activities anywhere in indirectly) by the world, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
Restricted Beneficial Owner’s Affiliates collectively represent less than one percent (ii) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A1%) of the Seller Disclosure Schedule total number of shares of such corporation’s capital stock outstanding, and (collectively, iii) neither the “Senior Management Restricted Beneficial Owner nor any Affiliate of the Business”) to resign Restricted Beneficial Owner is otherwise associated directly or otherwise leave the employ of Purchaser indirectly with such corporation or the Acquired Companies or otherwise hire, employ, engage or contract with any member Affiliate 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companiessuch corporation.
(b) Notwithstanding Section 7.5(a)(ii)During the Restricted Period, Sellers Seller and their Affiliates the Restricted Beneficial Owner shall not, and shall not be prohibited from permit any of its or restricted in any way with respect his respective Affiliates to: (i) advertising job openings by use solicit, induce or attempt to induce any Person who, within the 365-day period ending on the Closing Date, was a customer, supplier, licensee, consultant or other business associate of newspapersSeller (A) to cease doing business with Buyer, magazinesor (B) to diminish or materially alter, the Internet and other media not specifically directed at individual Transferred Employees in a manner harmful to any relationship with Buyer; or hiring any such Transferred Employees as a result thereof; (ii) hiring or soliciting assist any Transferred Employee who has terminated employment with Purchaser, the Acquired Companies or any Affiliate thereof, at least nine (9) months prior to the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing other Person to engage in any business the activities prohibited by clause (other than the Businessi) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personsentence.
(c) Seller expressly acknowledges that and the Restricted Beneficial Owner agrees that, during the Restricted Period, Seller and the Restricted Beneficial Owner shall not, and shall not permit any of its or his respective Affiliates to: (i) solicit, induce or attempt to induce any employee (A) to leave his or her employment with Buyer, or (B) to diminish or materially alter, in a manner harmful to Buyer, said employee’s relationship with Buyer; or (ii) assist any other Person to engage in the activities prohibited by clause (i) of this sentence.
(d) Following the Closing Date and until the date that Seller is liquidated and dissolved, except in relation to its rights and obligations under this Agreement and its administration of any Excluded Assets and of any liabilities and obligations other than Assumed Liabilities, Seller shall not, directly or indirectly, participate, as owner, stockholder, member, manager, agent, representative, employee, consultant, contractor or otherwise, in any business, firm or corporation in the Restricted Territory which operates any business, or markets, sells, licenses or otherwise provides any products or services, similar to or directly competitive with, the Business.
(e) For the purposes of this Section 5.04, the covenants contained in this Section 5.04 shall be construed as if each covenant is divided into separate and distinct covenants with respect to each capacity in which Seller and the Restricted Beneficial Owner is prohibited from competing and each part of the Restricted Territory. Each such covenant shall constitute separate and several covenants distinct from all other such covenants. In addition, in the event any covenant or other provision contained herein shall be deemed to be illegal, unenforceable or unreasonable by a court or other tribunal of competent jurisdiction with respect to any part of the Restricted Territory, such covenant or provision shall not be affected with respect to any and all other parts of the Restricted Territory, and each of the parties to this Agreement agrees and submits to the reduction of said territorial restriction to such an area as said court shall deem reasonable. Similarly, in the event any covenant or other provision contained herein shall be deemed to be illegal, unenforceable or unreasonable by a court or other tribunal of competent jurisdiction with respect to the Restricted Period, each of the parties hereto agrees and submits to the shortest reduction of the Restricted Period to such a time period as said court shall deem reasonable.
(f) Each party to this Agreement acknowledges that: (i) Seller and the Restricted Beneficial Owner is deriving substantial economic benefit from the sale of the Purchased Assets; (ii) the covenants and the restrictions contained in this Section 7.5 Agreement are reasonable in all respects (including with respect to subject matternecessary, geographical scope fundamental and time period) and such restrictions are necessary to protect Purchaserrequired for the protection of Buyer’s interest inin the Purchased Assets; (iii) such covenants relate to matters which are of a special, unique and extraordinary character that gives each of such covenants a special, unique and extraordinary value; (iv) the Restricted Beneficial Owner is entering into this Agreement solely in connection with the sale of the Purchased Assets and not in connection with any contemplated employment with Buyer or its Affiliates; and (v) a breach of any of such covenants or any other provision of this Agreement will result in irreparable harm and damage to Buyer that cannot be adequately compensated solely by a monetary award. Accordingly, it is expressly agreed that, in addition to all other remedies available at law or in equity (including, without limitation, money damages from the Restricted Beneficial Owner), Buyer shall be entitled to seek the remedy of a temporary restraining order, preliminary injunction or such other form of injunctive or equitable relief as may be used by any court of competent jurisdiction to restrain or enjoin Seller and the Restricted Beneficial Owner from breaching any such covenant or provision or to specifically enforce the provisions hereof.
(g) From and at all times following the Closing, Seller and the Restricted Beneficial Owner shall, and value of, the Acquired Companies’ businesses shall cause their respective Affiliates and representatives to: (including the goodwill inherent therein)i) hold in confidence any and all Confidential Information (as defined below) whether written or oral, (ii) Seller is primarily responsible for the creation not disclose any Confidential Information to any Person whatsoever, other than to Buyer or any of such valueits Affiliates or their respective representatives, or (iii) sell or use any Confidential Information in any manner whatsoever for the transactions contemplated direct or indirect benefit of any Person other than Buyer or its Affiliates. If any Person restricted by this Agreement constitute goodSection 5.04(g) is compelled to disclose any Confidential Information by judicial or administrative process or by other requirements of applicable law, valid Seller shall promptly notify Buyer in writing, and binding consideration for Seller’s obligationsshall cause the applicable party to disclose only that portion of such information which it is advised by its counsel in writing is legally required to be disclosed, 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 provided that the time period of any of the foregoing covenants is too lengthy Seller or the geographic coverage Restricted Beneficial Owner, as applicable, shall use best efforts to obtain an appropriate protective order or scope of any of the covenants is too broad, the restrictive time period other reasonable assurance that confidential treatment 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 accorded such information.
(h) For purposes of any breach of such restrictive covenant.this Agreement:
Appears in 2 contracts
Samples: Asset Purchase Agreement (Trulieve Cannabis Corp.), Asset Purchase Agreement (Trulieve Cannabis Corp.)
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”) Subject to Section 7.5(b)and for a period of one (1) year after the effective date of termination of his or her employment with the Company Group for any reason, as a material inducement to Purchaser to enter into this Agreement, Seller shall he or she will not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person)::
(i) for 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 period publicly-held company) that competes anywhere in any geographic area where the Company does business, including but not limited to the United States and Canada and their respective states, territories or provinces (collectively, the “Territory”) with the business of four 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;
(4ii) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, Either alone or in any manner own, operate, or, association with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thatothers, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere in the world, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
(iix) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, permit any organization directly or attempt indirectly controlled by the Employee to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) employee of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) Company Group to resign or otherwise leave the employ of Purchaser the Company Group, or (y) solicit for employment or engage as an independent contractor, or permit any organization directly or indirectly controlled by the Acquired Companies 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 period less than six months; or
(iii) Either alone or in association with others, directly or indirectly, solicit or otherwise hireattempt to establish for himself or herself or any other person, employfirm or entity, engage anywhere in the Territory any business relationship of a nature that is competitive with the business or contract with relationship of any member of the Senior Management Company Group with any person, firm or corporation which was a customer, client, vendor, supplier or distributor (or an actively sought prospective customer, client, vendor, supplier or distributor) of any member of the Business Company Group and with whom the Employee had direct or indirect contact or knowledge, either personally or as a result of Employee’s supervision of any Company Group employee, or encourage, induce, attempt 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 Dateinduce, solicit, entice, encourage or influence, solicit or attempt to solicit, entice, encourage solicit any such person or influence, entity to terminate his or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise leave her relationship with the employ Company. For purposes of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any Transferred Employee to perform services other than for the benefit of Purchaser or the Acquired Companies.
(b) Notwithstanding this Section 7.5(a)(ii5(a)(iii), Sellers and their Affiliates the Company Group’s business or relationship with a customer, client, vendor, supplier or distributor (or actively sought prospective business or relationship) shall not be prohibited from or restricted in any way with respect tohave existed: (ix) advertising job openings by use at any time during the Employee’s period 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 Company Group (9) months prior to in the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities case of any company (whether public or private) that is primarily engaged in Competing Business Activitiesactivity during such period of employment); or (vy) acquiring during the twelve-month period preceding the effective date of the Employee’s termination of employment with the Company Group (in a single transaction or series of related transactions) any Person that is, or has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Person.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 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 case of any activity after such termination 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 covenantemployment).
Appears in 2 contracts
Samples: Restricted Stock Agreement (Hd Supply, Inc.), Employee Stock Option Agreement (Hd Supply, Inc.)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFor a period of three years commencing on the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause not permit any of its Affiliates not to(excluding, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent offor purposes of this Section 4.07, any other Person):
(ihistorical employees of the Company or its Subsidiaries) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thatto, directly or indirectly, undertakes, manages, participates in, carries on (i) engage in or is engaged in, any Competing Business Activities anywhere assist others in engaging in the worldRestricted 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; and
or (iiiii) intentionally interfere in any material respect with the business relationships (Awhether formed prior to or after the date of this Agreement) for 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 period of three (3) years following the Closing Date, solicit, entice, encourage or influencecontrolling Person of, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any a member of the Senior Management a group which controls, such Person and does not, directly or indirectly, own 5% or more of the Business to perform services other than for the benefit any class of Purchaser or the Acquired Companies or (B) for a period securities of two (2) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companiessuch Person.
(b) Notwithstanding Section 7.5(a)(ii)During the Restricted Period, Sellers Seller shall not, and their Affiliates shall not be prohibited 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 general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 4.07(b) shall prevent Seller or any of its Affiliates from or restricted in any way with respect to: hiring (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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or employee whose employment has been terminated by Purchaserthe Company, the Acquired Companies any Subsidiary or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller Buyer or its Affiliates prior thereto; (iiiii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of after 120 days from the date of this Agreementtermination of employment, including any employee whose employment has been terminated by the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personemployee.
(c) During the Restricted Period, Seller expressly 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 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 (iwithout any requirement to post bond).
(e) each of Seller acknowledges that the restrictions contained in this Section 7.5 4.07 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, the legitimate interests of Buyer and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Buyer to enter into this Agreement and complete the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service, or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 4.07 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Lithia Motors Inc), Stock Purchase Agreement (Lithia Motors Inc)
Non-Competition; Non-Solicitation. In consideration of the agreements and obligations set forth in this Agreement and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, each Major Member agrees as follows:
(a) Subject to Section 7.5(bFor a period commencing on the date hereof and ending on the third anniversary of the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, Seller shall such Major Member will not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakeseither for himself or for any other individual, managescorporation, participates inpartnership, carries on joint venture or is engaged inother entity, engage in or participate in any business (including, without limitation, any Competing Business Activities anywhere division, group or franchise of a larger organization) in North America, Europe, Asia and other countries throughout the world which engages or which proposes to engage in the worldimplementation or hosting of Parent’s software (the “Competitive Business”). For purposes of this Agreement, including the term “participate in” shall include, without limitation, having any direct or indirect interest in any corporation, partnership, joint venture or other entity, whether as a sole proprietor, owner, stockholder, partner, shareholderjoint venturer, membercreditor or otherwise, or rendering any direct or indirect service or assistance to any individual, corporation, partnership, joint venture and other business entity (whether as a director, officer, manager, supervisor, employee, principal, agent, trustee consultant or consultant; and
(ii) (A) for otherwise), provided that nothing herein shall prevent such Major Member from owning, solely as a period of three (3) years following the Closing Datepassive investment, solicitsecurities in any publicly traded company so long as Major Member does not beneficially own, enticedirectly or indirectly, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) more than 1% of the Seller Disclosure Schedule (collectively, equity securities of such company and has no active participation in the “Senior Management business of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companiessuch company.
(b) Notwithstanding Section 7.5(a)(ii)During the Restricted Period, Sellers and their Affiliates Major Member shall not be prohibited from not, directly or restricted in indirectly, recruit, solicit or otherwise induce any way employee, sales agent or consultant of Parent or the Company to discontinue such employment, agency, or consultant relationship with respect to: (i) advertising job openings by use of newspapersParent or the Company, 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 person who has terminated employment with Purchaserbeen an employee, sales agent or consultant of Parent or the Acquired Companies or any Affiliate thereof, at least nine (9) months prior to Company in the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personthen immediately preceding three months.
(c) Seller expressly acknowledges that (i) each If one or more of the restrictions provisions contained in this Section 7.5 are reasonable in all respects 7.05 shall for any reason be held to be excessively broad or unreasonable as to the period, scope or geographical area so as to be unenforceable under applicable law, such provision or provisions shall be modified or substituted by the appropriate judicial body so as to cover the maximum period, scope or geographical area permitted by applicable law.
(including with respect to subject matter, geographical scope d) Major Member acknowledges and time period) and such restrictions are necessary to protect Purchaseragrees that Parent’s interest in, and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible remedy at law 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 a breach 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 threatened breach of any of the foregoing covenants is too lengthy or provisions of this Section 7.05 would be inadequate. In recognition of this fact, each Major Member agrees that, in the geographic coverage or scope event of a breach by such Major Member of any of the covenants is too broadsuch provisions and in addition to Parent’s remedy at law, 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 Parent shall be extended during entitled to obtain equitable relief in the term form of specific performance, temporary restraining order, temporary or permanent injunction or any other equitable remedy which may then be available. Nothing herein contained shall be construed as prohibiting Parent from pursuing any other remedies available to it for such breach of such restrictive covenantor threatened breach.
Appears in 2 contracts
Samples: Merger Agreement (Callidus Software Inc), Merger Agreement (Callidus Software Inc)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFrom the Closing Date until the third (3rd) anniversary following the Closing (the “Non-Compete Period”), as a material inducement to no Restricted Securityholder shall, 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 to enter into this Agreementmay withhold or condition in its sole and absolute discretion, Seller shall notown, and shall cause its Affiliates not tomanage, directly operate, control or indirectly (whether by itselfparticipate in the ownership, through an Affiliate management, operation, control of, or in partnership or conjunction consult with or perform services for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or connected in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere in the world, including (whether as a partner, shareholder, member, employee, principal, agent, trustee employee, employer, investor, consultant, stockholder, partner, member, financier or consultant; and
in any other individual or representative capacity of any kind whatsoever) any business or enterprise engaged in the Restricted Business: (i) in the United States where Purchaser or any Purchaser Entity conducts or has plans to conduct business during the Non-Compete Period or (ii) outside of the United States where Purchaser or any Purchaser Entity conducts or has plans to conduct business during the Non-Compete Period; provided however that nothing in this Agreement shall prevent or restrict any Restricted Securityholder from owning as a passive investment less than one percent (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A1%) of the Seller Disclosure Schedule (collectively, the “Senior Management outstanding shares of the Business”) to resign or otherwise leave the employ capital stock of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companiespublic corporation.
(b) Notwithstanding Section 7.5(a)(ii)During the Non-Compete Period, Sellers and their Affiliates shall not be prohibited from or restricted no Securityholder shall, in any way with respect to: 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 absolute discretion (i) advertising job openings by use solicit, induce, encourage or recruit any Person who is at the time, or was during the preceding twelve (12) months, an employee, contractor or consultant of newspapersthe Company to terminate or reduce the scope of his, magazines, her or its employment or business relationship with the Internet and other media not specifically directed at individual Transferred Employees Company or hiring any otherwise interfere with such Transferred Employees as a result thereofrelationship; or (ii) hiring employ 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged described in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent clause (15%) of the total consolidated revenues of such Personi).
(c) Seller expressly acknowledges that During the Non-Compete Period, no Restricted Securityholder shall, 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 absolute discretion:
(i) each induce or encourage any licensor, vendor or supplier to Company to terminate or reduce the scope of his, her or its relationship with the restrictions contained in this Section 7.5 are reasonable in all respects (including Company, or otherwise interfere 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), relationship;
(ii) Seller is primarily responsible for induce or encourage any client, customer or licensee of the creation Company to terminate or reduce the scope of his, her or its relationship with the Company or otherwise interfere with such value, relationship; or
(iii) the transactions contemplated by this Agreement constitute goodinduce or encourage any client, 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 customer or any licensee of the transactions contemplated hereby without Company to purchase or use any product or service that directly or indirectly competes with any product or service within 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 scope 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 covenantRestricted Business.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Vir Biotechnology, Inc.), Securities Purchase Agreement (Vir Biotechnology, Inc.)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(b), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a The Executive agrees that (A) during the term of Executive’s employment with the Company and, (B) during the 12-month period of four (4) years following the Closing Datetermination of Executive’s employment with the Company for any reason (the “Non-Competition Period”) within the Restricted Territory, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thatthe Executive shall not, directly or indirectly, undertakes, manages, participates engage or participate in, carries on prepare or is engaged inset up, assist or have any Competing Business Activities anywhere interest in the worldany person, including partnership, corporation, firm, association or other business organization, entity or enterprise, whether as a partner, shareholder, memberan officer, employee, principaldirector, agentpartner, trustee stockholder, consultant or consultant; andotherwise, that engages in the Company’s Business. Notwithstanding the foregoing, (x) the Executive shall not be precluded from purchasing or owning, directly or beneficially, as a passive investment, two percent (2%) or less of any class of publicly traded securities if Executive does not actively participate in or control, directly or indirectly, any investment or other decisions with respect to such entity, and (y) if the 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 termination 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) During the Non-Competition Period, the Executive shall not, directly or indirectly:
(A1) for a period of three (3) years following the Closing Dateoffer to hire, solicitdivert, enticeentice away, encourage solicit or influencein any other manner persuade, or attempt to do 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 was, at any time within six months prior to the Solicitation, an officer, employee, agent or consultant of the Company or any Company Managed Fund to work for a third party engaged in the Company’s Business or to engage in any of the activities hereby prohibited with respect to the Executive under this subparagraph 7(b)(ii);
(2) solicit, enticedivert, encourage entice away or influencein any other manner persuade, or attempt to solicit, entice, encourage or influence, do any of individuals listed the foregoing, on Schedule 7.5(a)(ii)(A(1) any actual or prospective customer of or investor in the Seller Disclosure Schedule (collectively, Company or any Company Managed Fund to become a customer of or investor in any third party engaged in the “Senior Management of the Business”) to resign Company’s Business or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 any customer or investor to cease doing business with the Closing Date, solicit, entice, encourage Company or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.Company Managed Fund; or
(b3) Notwithstanding Section 7.5(a)(ii), Sellers and their Affiliates shall not be prohibited from make any statements or restricted perform any acts intended to advance the interest of any person engaged in or proposing to engage in the Company’s Business in any way with respect to: (i) advertising job openings by use that is intended to injure the interests 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 Company or any Affiliate thereof, at least nine (9) months prior to the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such PersonCompany Managed Fund.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 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: Employment Agreement (AGNC Investment Corp.), Employment Agreement (AGNC Investment Corp.)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(b), as As a material inducement to Purchaser IntraLinks to grant the Options pursuant to Section 3.3 hereof and to enter into this Agreement, Seller 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, Rolodex type or 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, as a condition of and in consideration of Executive’s employment with IntraLinks and IntraLinks’ agreement to provide Executive with the Options set forth in this Agreement, Executive voluntarily enters into the following covenants to provide IntraLinks with reasonable protection of those interests:
(a) Executive agrees that during the term of his employment with IntraLinks and for a period of one (1) year thereafter, Executive shall not, and shall cause its Affiliates not toalone or as an employee, officer, director, agent, shareholder (other than an owner of 1% or less of the outstanding shares of any publicly-traded company), consultant, partner, member, owner or in any other capacity, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):indirectly:
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or engage in any manner ownCompetitive Activity, operateas defined below, or, within or with respect to any Competing Business Activitieslocation in the United States or abroad in which Executive performed or directed his services (including but not limited to sales and customer support calls, advisewhether conducted in person, assist by telephone or consult withonline) at any time during the twelve month period immediately preceding the termination of Executive’s employment for any reason (the “Territories”), or have an interest assist any other person or organization in engaging in, or preparing to engage in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere Competitive Activity in the world, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; andsuch Territories;
(ii) (A) for a period solicit or provide services to any Clients, as defined below, of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or IntraLinks and/or any of its Affiliates (other than the Acquired Companies) engages affiliates, on his own behalf or on behalf of any third party, in as furtherance of the date any Competitive Activity. For purposes of this AgreementSection 6, including the operations set forth on Schedule 7.5(b)(iii) “Client” shall mean any current or former customer of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) IntraLinks or user of the outstanding voting securities of any company (whether public IntraLinks’ services or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Person.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 7.5 are reasonable in all respects (including software with respect to subject matterwhom, geographical scope and for any reason, at any 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 Executive’s employment with IntraLinks: (A) Executive performed services (including but not limited to sales and customer support calls, whether conducted in person, by telephone or online) on behalf of IntraLinks and/or any breach of such restrictive covenant.affiliate; (B) Executive had substantial contact; or
Appears in 2 contracts
Samples: Employment Agreement (IntraLinks Holdings, Inc.), Employment Agreement (Intralinks Inc)
Non-Competition; Non-Solicitation. (ai) Subject to Section 7.5(b)Each Class B Member, Class C Member, Class D Member (collectively, the “Non-Compete Parties”) acknowledges that, as a material inducement 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 Purchaser 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 enter into this Agreementoperate within the Territory. Therefore, Seller 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 (whether by itselfindirectly, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, orlease, with respect manage, control, engage in, invest in, lend to, own any debt or equity security or interest of, permit its name to any Competing Business Activitiesbe used by, adviseact as a director, assist or consult withmanager, partner, consultant, or have an interest 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, any other Person that, directly or indirectly, undertakes, manages, participates has taken substantive steps towards participating in, carries on as of the last date the Non-Compete Party or any of his/its Affiliates is engaged ina Member of the Company, any Competing Business Activities in each case for the oil and gas industry anywhere in the worldTerritory (collectively, including as a partner“Competing Business”); provided, shareholderhowever, memberthat (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)), employee, principal, agent, trustee or consultant; andwill not be deemed to be a breach of this Section 3.12(b)(i).
(ii) (A) for a During the period of three (3) years following the Closing Date, solicit, entice, encourage such Non-Compete Party or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) his/its Affiliates is a Member of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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) Company and for a period of two (2) years following thereafter, without the Closing Dateconsent of the Company (subject to Approval by a Supermajority of the Board), solicita Non-Compete Party shall not, enticeand shall cause his/its Affiliates not to, anywhere in the Territory: (A) directly or indirectly, hire, engage, or solicit (or attempt any of the foregoing) for employment (or engagement as a consultant) any person who is employed (or engaged as a consultant) by any of the Ranger IPO Entities, the Company or its subsidiaries, or encourage or influence, induce or attempt to solicit, entice, encourage or influenceinduce 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 its subsidiaries or any such restricted current or former employee or consultant); (B) encourage or induce or attempt to solicit, entice, encourage or influenceinduce any Person who is a customer, supplier, vendor, licensee, licensor, franchisee, or other business relation of any Transferred Employee Member, the Company, their Affiliates or the Ranger IPO Entities to resign cease doing business or modify the way it does business with any of the Ranger IPO Entities, the Company or its subsidiaries, or in any way interfere with or otherwise leave affect the employ relationship between any such customer, supplier, licensee, licensor, franchisee, or business relation and any of Purchaser the Ranger IPO Entities, the Company or the Acquired Companies its Affiliates; or otherwise hire, employ, engage or contract with (C) solicit any Transferred Employee to perform services other than Person described in subsection (B) for the benefit of Purchaser or the Acquired Companiesany Competing Business.
(biii) Notwithstanding If, at the time of enforcement of this Section 7.5(a)(ii3.12(b), Sellers and their Affiliates a court or other tribunal shall not be prohibited from hold that the duration, geography or restricted in any way with respect to: (i) advertising job openings by use of newspapers, magazinesscope restrictions stated herein are unreasonable under circumstances then existing, the Internet 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 media not specifically directed at individual Transferred Employees or hiring tribunal shall reform the restrictions contained herein to 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 Transferred Employees as a result thereof; Member agrees and acknowledges that the time periods set forth herein shall be extended by the time period of such breach.
(iiv) hiring or soliciting Nothing in this Section 3.12(b) shall abrogate any Transferred Employee who has terminated employment with Purchaser, other non-competition agreement to which the Acquired Companies or any Affiliate thereof, at least nine (9) months prior to the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller Company or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as and any Non-Compete Party is a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personparty.
(cvi) Seller expressly acknowledges that (i) each of Notwithstanding anything contained herein to the restrictions contained contrary, in no event shall this Section 7.5 are reasonable in all respects (including with respect to subject matter, geographical scope and time period3.12(b) and such restrictions are necessary to protect Purchaser’s interest in, and value of, restrict the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) the transactions contemplated Ranger IPO Entities from taking any action that would otherwise be prohibited 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 covenant3.12(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. (ai) Subject to Section 7.5(b)Each Class C Member and Class D Member (collectively, the “Non-Compete Parties”) acknowledges that, as a material inducement 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 Purchaser 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 enter into this Agreementoperate within the Territory. Therefore, Seller 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 (whether by itselfindirectly, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, orlease, with respect manage, control, engage in, invest in, lend to, own any debt or equity security or interest of, permit its name to any Competing Business Activitiesbe used by, adviseact as a director, assist or consult withmanager, partner, consultant, or have an interest 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, any other Person that, directly or indirectly, undertakes, manages, participates has taken substantive steps towards participating in, carries on as of the last date the Non-Compete Party or any of his/its Affiliates is engaged ina Member of the Company, any Competing Business Activities in each case for the oil and gas industry anywhere in the worldTerritory (collectively, including as a partner“Competing Business”); provided, shareholderhowever, memberthat (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; and (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, employee, principal, agent, trustee or consultant; andwill not be deemed to be a breach of this Section 3.12(b)(i).
(ii) (A) for a During the period of three (3) years following the Closing Date, solicit, entice, encourage such Non-Compete Party or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) his/its Affiliates is a Member of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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) Company and for a period of two (2) years following thereafter, without the Closing Dateconsent of the Company (subject to Approval of the Board), solicita Non-Compete Party shall not, enticeand shall cause his/its Affiliates not to, anywhere in the Territory: (A) directly or indirectly, hire, engage, or solicit (or attempt any of the foregoing) for employment (or engagement as a consultant) any person who is employed (or engaged as a consultant) by any of the Ranger IPO Entities, the Company or its subsidiaries, or encourage or influence, induce or attempt to solicit, entice, encourage or influenceinduce 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 its subsidiaries or any such restricted current or former employee or consultant); (B) encourage or induce or attempt to solicit, entice, encourage or influenceinduce any Person who is a customer, supplier, vendor, licensee, licensor, franchisee, or other business relation of any Transferred Employee Member, the Company, their Affiliates or the Ranger IPO Entities to resign cease doing business or modify the way it does business with any of the Ranger IPO Entities, the Company or its subsidiaries, or in any way interfere with or otherwise leave affect the employ relationship between any such customer, supplier, licensee, licensor, franchisee, or business relation and any of Purchaser the Ranger IPO Entities, the Company or the Acquired Companies its Affiliates; or otherwise hire, employ, engage or contract with (C) solicit any Transferred Employee to perform services other than Person described in subsection (B) for the benefit of Purchaser or the Acquired Companiesany Competing Business.
(biii) Notwithstanding If, at the time of enforcement of this Section 7.5(a)(ii3.12(b), Sellers and their Affiliates a court or other tribunal shall not be prohibited from hold that the duration, geography or restricted in any way with respect to: (i) advertising job openings by use of newspapers, magazinesscope restrictions stated herein are unreasonable under circumstances then existing, the Internet 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 media not specifically directed at individual Transferred Employees or hiring tribunal shall reform the restrictions contained herein to 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 Transferred Employees as a result thereof; Member agrees and acknowledges that the time periods set forth herein shall be extended by the time period of such breach.
(iiv) hiring or soliciting Nothing in this Section 3.12(b) shall abrogate any Transferred Employee who has terminated employment with Purchaser, other non-competition agreement to which the Acquired Companies or any Affiliate thereof, at least nine (9) months prior to the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller Company or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as and any Non-Compete Party is a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personparty.
(cvi) Seller expressly acknowledges that (i) each of Notwithstanding anything contained herein to the restrictions contained contrary, in no event shall this Section 7.5 are reasonable in all respects (including with respect to subject matter, geographical scope and time period3.12(b) and such restrictions are necessary to protect Purchaser’s interest in, and value of, restrict the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) the transactions contemplated Ranger IPO Entities from taking any action that would otherwise be prohibited 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 covenant3.12(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. (a) Subject to Section 7.5(b), as As a material inducement to Purchaser the Company to enter into this Agreement, Seller 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) Executive agrees that during the term of his employment with the Company and for a period of one year thereafter, Executive shall not, and shall cause its Affiliates not toalone or as an employee, officer, director, agent, shareholder (other than an owner of 2% or less of the outstanding shares of any publicly-traded company), consultant, partner, member, owner or in any other capacity, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):indirectly:
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or engage in any manner own, operate, or, Competitive Activity (as defined below) within or with respect to any Competing Business Activitieslocation in the United States or abroad in which Executive performed or directed his services (including but not limited to sales and customer support calls, advisewhether conducted in person, assist by telephone or consult withonline) at any time during the 12-month period immediately preceding the termination of Executive’s employment for any reason (the “Territories”), or have an interest assist any other person or organization in engaging in, or preparing to engage in, any other Person thatCompetitive Activity in such Territories;
(ii) solicit or provide services to any Clients, directly as defined below, of the Company and/or any of its affiliates, on his own behalf or indirectlyon behalf of any third party, undertakesin furtherance of any Competitive Activity. For purposes of this Section 6, manages“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, participates inparticipate 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, carries on whether or is not engaged in, 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 Competing Business Activities anywhere in the world, including as a partner, shareholder, member, employee, principal, agent, trustee or consultantreason; and
(ii) (Aiv) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date purposes of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities “Competitive Activity” shall mean any offering, sale, licensing or provision by any entity of any company (whether public software, application service or private) that is primarily engaged system, in Competing Business Activities; direct competition with the Company’s current or (v) acquiring (in a single transaction currently contemplated offerings and including, without limitation, electronic or series of related transactions) any Person that isdigital 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 has a subsidiary, division, group, franchise other business processes for which the Company’s products or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Person.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 7.5 services 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 or 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 been used during the term 12-month period preceding termination of Executive’s employment for any breach of such restrictive covenantreason.
Appears in 2 contracts
Samples: Employment Agreement (IntraLinks Holdings, Inc.), Employment Agreement (IntraLinks Holdings, Inc.)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(b), as As a material inducement to Purchaser the Company to enter into this Agreement, Seller 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) Executive agrees that during the term of his employment with the Company and for a period of one year thereafter, Executive shall not, and shall cause its Affiliates not toalone or as an employee, officer, director, agent, shareholder (other than an owner of 2% or less of the outstanding shares of any publicly-traded company), consultant, partner, member, owner or in any other capacity, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):indirectly:
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or engage in any manner own, operate, or, Competitive Activity (as defined below) within or with respect to any Competing Business Activitieslocation in the United States or abroad in which Executive performed or directed his services (including but not limited to sales and customer support calls, advisewhether conducted in person, assist by telephone or consult withonline) at any time during the 9-month period immediately preceding the termination of Executive’s employment for any reason (the “Territories”), or have an interest assist any other person or organization in engaging in, or preparing to engage in, any other Person thatCompetitive Activity in such Territories;
(ii) solicit or provide services to any Clients, directly as defined below, of the Company and/or any of its affiliates, on his own behalf or indirectlyon behalf of any third party, undertakesin furtherance of any Competitive Activity. For purposes of this Section 6, manages“Client” shall mean any then-current customer of the Company, participates informer 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, carries on participate in or is 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, 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 Competing Business Activities anywhere in the world, including as a partner, shareholder, member, employee, principal, agent, trustee or consultantreason; and
(ii) (Aiv) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date purposes of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities “Competitive Activity” shall mean any offering, sale, licensing or provision by any entity of any company (whether public software, application service or private) that is primarily engaged system, in Competing Business Activities; direct competition with the Company’s offerings and including electronic or (v) acquiring (in a single transaction digital document repositories for facilitating transactional due diligence, mergers, acquisitions, divestitures, financings, investments, investor relations, research and development, clinical trials or series of related transactions) any Person that is, other business processes for which the Company’s products or has a subsidiary, division, group, franchise services are or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Person.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 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 been used during the term 12-month period preceding termination of Executive’s employment for any breach of such restrictive covenantreason.
Appears in 2 contracts
Samples: Employment Agreement (Precipio, Inc.), Employment Agreement
Non-Competition; Non-Solicitation. (a) Subject In order for the Buyer to Section 7.5(b)have and enjoy the full benefit of the businesses of the Company and each of its Subsidiaries, and as a material inducement to Purchaser the Buyer to enter into this Agreement (without such inducement the Buyer would not have entered into this Agreement), Seller 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 not, and shall cause its Affiliates not to, directly or indirectly (whether by itselfindividually, through as an Affiliate or in partnership or conjunction with or foremployee, or as a officer, director, manager, member, partner, owner, consultant consultant, advisor or agent ofof any business, or in any other Personcapacity):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, or carry on or be engaged or have any financial or other interest in, or in any other manner ownadvise or assist any other Person, operatenor take any steps in anticipation thereof, orin connection with the operation of, with respect to any a Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere in the world, including as a partner, shareholder, member, employee, principal, agent, trustee ; provided that two or consultant; andmore of the Founders shall not collectively violate this Section 7.4(a)(i) until the later of the period set forth in clause (a)(x) in Section 7.4 and twenty-four months from the date of voluntary or involuntary termination of such Person’s employment with the Company and its Subsidiaries;
(ii) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or intentionally influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(Aemployee who at such time or in the immediately preceding twelve months was (1) a Covered Employee of the Seller Disclosure Schedule (collectivelyBuyer, the Company or any of their respective Affiliates or (2) a vendor who worked on or with the “Senior Management of the Business”) ABSolute” database, to resign or otherwise leave the employ of Purchaser the Buyer, the Company or the Acquired Companies any of their respective Affiliates or otherwise hire, employ, engage or contract with any member of the Senior Management of the Business such employee or vendor to perform services other than for the benefit of Purchaser the Buyer, the Company or the Acquired Companies any of their respective Affiliates or (B) for 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 two 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
(2iii) years following the Closing Date, solicit, entice, encourage or influenceencourage, 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 for the direct or indirect benefit of any Competing Business; provided that two or more of the 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) 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 Buyer 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 not (x) solicit, entice, encourage or intentionally influence, or attempt to solicit, entice, encourage or influence, any Transferred 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 otherwise leave the employ of Purchaser the Buyer, the Company or the Acquired Companies any of their respective Affiliates or otherwise hire, employ, engage or contract with any Transferred Employee such employee or vendor to perform services other than for the benefit of Purchaser or the Acquired Companies.
(b) 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, magazinesBuyer, the Internet Company or any of their respective Affiliates or (y) interfere with any relationship between a vendor or service provider and other media not specifically directed at individual Transferred Employees the Buyer, the Company or hiring any such Transferred Employees as a result thereof; of their respective Affiliates or (iiz) hiring solicit, entice, encourage, influence accept payment from, or soliciting attempt to solicit, entice, encourage, influence or accept payment from, any Transferred Employee client of the Buyer, the Company or any of their respective Affiliates (including any Person who has terminated employment with Purchaser, been a client of the Acquired Companies or any Affiliate thereof, at least nine (9) months prior to the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller 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 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 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 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 Acquired Companiesbenefit 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) engages 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 AgreementAgreement a director of a Fund Management Company regulated by the Swiss Financial Market Supervisory Authority, including then the operations set forth on Schedule 7.5(b)(iiirestrictions included in this clause (e) of the Seller Disclosure Schedule; (iv) holding shall not apply as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 rules and regulations applicable to the date directors of such acquisitionFund Management Company are in conflict with the restrictions included in this clause (e). For the avoidance of doubt, the revenues derived nothing in this Section 7.4(e) shall restrict any Seller from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personmaking or managing any Personal Investments.
(cf) Seller expressly acknowledges that Notwithstanding anything to the contrary set forth herein (including Section 12.8), in the event of a breach of any of the provisions of Section 7.4(a), Section 7.4(b) and Section 7.4(c) (the “Restrictive Covenants”):
(i) the Buyer and its Affiliates (including the Company and each of its Subsidiaries) shall have the restrictions contained in this Section 7.5 are reasonable in all respects 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 subject matter, geographical scope and time period) and the operation of the Restrictive Covenant in the particular jurisdiction in which such restrictions are necessary to protect Purchaser’s interest in, and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller adjudication is primarily responsible for the creation of such value, made; and
(iii) the transactions contemplated by this Agreement constitute good, valid parties acknowledge and binding consideration agree that the Restrictive Covenants are necessary for Seller’s obligations, covenants the protection and agreements contained in this Section 7.5 and (iv) Purchaser would not have entered into this Agreement or any preservation of the transactions contemplated hereby without value and 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 goodwill of the foregoing covenants is too lengthy or the geographic coverage or scope of any of the covenants is too broadBuyer’s, the restrictive time period will be deemed to be the longest period permissible under applicable Legal Requirement Company’s and the geographic coverage each of its Subsidiaries’ businesses and are reasonable and valid in geographical and temporal 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 covenantin all other respects.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Evercore Partners Inc.)
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) Subject to Section 7.5(b)the consummation of a Qualified IPO, as or (b) two (2) years after he/she is no longer a material inducement to Purchaser to enter into this Agreementdirector, Seller 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 and each Key Employee not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):indirectly:
(i) for a period of four (4) years following the Closing Date, undertakeown, manage, participate engage in, carry on or be engaged in, or in any manner own, operate, orcontrol, with respect to any Competing Business Activitieswork for, advise, assist or consult with, render services for, do business with, maintain any interest in (proprietary, financial or have an interest inotherwise) or participate in the ownership, management, operation or control of, any other Person thatbusiness, whether in corporate, proprietorship or partnership form or otherwise, that is related to the business or otherwise competes with the Group Companies’ business (each a “Restricted Business”); provided, however, the restrictions contained in subsection (i) shall not restrict the acquisition by a Founder or a Key Employee, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere in the world, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
(ii) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any member of the Senior Management of the Business to perform services other less 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five one percent (51%) of the outstanding voting securities share capital of any publicly traded company (whether public or private) that is primarily engaged in Competing Business Activities; or a Restricted Business;
(vii) acquiring (in a single transaction or series of related transactions) solicit any Person that iswho is or has been at any time a customer of the Group for the purpose of offering to such customer goods or 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 subsidiary, division, group, franchise supplier or segment that is, engaged in licensor or customer of any Competing Business Activity and, following such acquisition, actively engaging in Group Company for the purpose of inducing any such Competing Business ActivityPerson to terminate its business relationship with such Group Company; or
(iii) solicit or entice away or endeavor to solicit or entice away any director, so long as for officer, consultant or employee of any Group Company. Each of the most recent fiscal year ended prior Founders and the Key Employees (to the date of such acquisition, extent he/she is a party to this Agreement) expressly agrees that the revenues derived from the Competing Business Activities were less than fifteen percent (15%) limitations set forth in this Section 17.8 are reasonably tailored and reasonably necessary in light of the total consolidated revenues circumstances. Furthermore, if any provision of such Person.
(c) Seller expressly acknowledges that (i) each this Section 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 restrictions undertakings contained in this Section 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 17.8 shall be enforceable 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 each 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 Group Companies and the geographic coverage Investors separately 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 covenantindependently.
Appears in 2 contracts
Samples: Shareholder Agreement (DouYu International Holdings LTD), Shareholder Agreement (DouYu International Holdings LTD)
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) Subject Except as provided in this Section 7.09, during the period commencing at the Closing and up to Section 7.5(band 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”), as a material inducement to Purchaser to enter into this AgreementXxxxxx Xxxxxxx, Seller whether directly or indirectly, shall not, and shall cause its Affiliates not to, directly whether for himself or indirectly (whether by itself, through an Affiliate on behalf of or in partnership or conjunction with or for, or any other Person in any capacity (as a memberprincipal, ownerequity holder, consultant joint-venturer, partner, director, officer, agent, executive, consultant, contractor, employee, lender or agent ofotherwise) (collectively, any other Personthe “Covenanting Party”):
(i) induce, solicit, hire, recruit or attempt to persuade any 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 four time or is at-will;
(4ii) years following the Closing Date, undertake, manage, participate in, carry on employ or be engaged inestablish 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 manner ownact which may interfere with or materially and adversely affect, operatealter or change the relationship (contractual or otherwise) of any Company Party with any Person that is a Client, orProspective Client, with respect to vendor, supplier or contractor of any Competing Business Activities, advise, assist or consult withCompany Party, or have an interest inotherwise induce or attempt to induce any such Person to cease doing business, reduce or otherwise limit its business with any other Person thatCompany Party;
(iv) solicit business from any Client or Prospective Client, or do business with any Client or Prospective Client, involving the Business or any business that is competitive, directly or indirectly, undertakes, manages, participates with the Business; or
(v) engage or participate in, carries on manage, operate, be employed by, consult with, advise, or is engaged be financially interested in, any Competing Business Activities anywhere Person engaged in the world, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
(ii) (A) for a period of Business anywhere where any Company Party transacts the Business during the three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 year period of two (2) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) 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 immediately prior to the date of first contact by Seller or its Affiliates with such Transferred EmployeeClosing Date (provided, or whose employment has been terminated by Purchaserhowever, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage that nothing contained in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) Section 7.09 shall prevent Xxxxxx Xxxxxxx from holding as a for passive investment not more less than five percent (5%) of the outstanding voting any class of equity securities of any a company (whether public whose securities are publicly traded on a national securities exchange or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personnational market system).
(cb) Seller expressly acknowledges that (i) each For purposes of the restrictions contained in this Section 7.5 are reasonable in all respects (including with respect Section 7.09, “Client” means a Person for whom or which any Company Party performed services or to subject matterwhom or which any Company Party sold or licensed its products, 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 prior twelve (12) months. “Prospective Client” means Persons whose business was solicited by any breach of such restrictive covenantCompany 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) Subject to Section 7.5(b8.3(b), as a material inducement to Purchaser Buyer to enter into this Agreement, Seller Parent shall not, and Parent shall cause each of its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or forwith, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four three (43) years following the Closing Date, undertake, manage, participate in, in or carry on or be engaged in, or in any other manner own, operate, or, with respect to any Competing Business Activities, advise, assist advise or consult withassist, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on or is engaged inin connection with the operation of, any Competing Business Activities anywhere in the worldworld in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
(ii) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Business Employee to resign or otherwise leave the employ of Purchaser Buyer or the Acquired Companies its Affiliates or otherwise hire, employ, engage or contract with any Transferred Business Employee to perform services other than for the benefit of Purchaser Buyer or the Acquired Companiesits Affiliates.
(b) Notwithstanding Section 7.5(a)(ii8.3(a), Sellers Parent and their its Affiliates shall not be prohibited from or restricted in any way with respect to: (i) advertising job openings by use of third party recruiters, newspapers, magazines, the Internet internet, social media and other media media, so long as such efforts are not specifically directed at individual Transferred Employees Business Employees, or hiring any such Transferred Business Employees as a result thereof; (ii) hiring or soliciting any Transferred Business Employee who has terminated employment with Purchaser, the Acquired Companies Buyer or any Affiliate thereof, thereof at least nine three (93) months prior to the date of first contact by Seller Parent or its Affiliates with such Transferred Business Employee, or whose employment has been terminated by Purchaser, the Acquired Companies Buyer or any Affiliate thereof, so long as as, in each case, there was no solicitation prohibited hereunder in violation of Section 8.3(a)(ii) by Seller Parent or its Affiliates Subsidiaries prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller Parent or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding holding, directly or indirectly, solely as a passive investment an investment, not more than five one percent (51%) of the outstanding voting securities of any company (whether public or private) traded on any national securities exchange that is primarily engaged in Competing Business Activities; or (v) acquiring (acquiring, and following such acquisition, actively engaging in a single transaction or series of related transactions) any Person business that is, or has a subsidiarySubsidiary, division, group, franchise or segment that is, is engaged in 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 ending prior to the date of such acquisition, the revenues derived from the Competing Business Activities were less than fifteen ten percent (1510%) of the total consolidated revenues of such Personbusiness.
(c) Seller expressly Parent acknowledges that a violation of this Section 8.3 may cause Buyer and its Affiliates irreparable harm which may not be adequately compensated for by money damages. Parent therefore agrees that in the event of any actual or threatened violation of this Section 8.3, Buyer shall be entitled, in addition to other remedies that it may have, to seek a temporary restraining order and to seek preliminary and final injunctive relief against Parent or any Subsidiary of Parent to prevent any violations of this Section 8.3, without the necessity of posting a bond.
(id) each of Parent acknowledges that the restrictions contained in this Section 7.5 8.3 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, the legitimate interests of the Buyer and value of, constitute a material inducement to the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 8.3 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Requirements of Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any service, or other limitations permitted by applicable Requirements of the transactions contemplated hereby without the restrictions Law. The covenants contained in this Section 7.5 8.3 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 2 contracts
Samples: Purchase Agreement (Chart Industries Inc), Purchase Agreement (Cryoport, Inc.)
Non-Competition; Non-Solicitation. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and controlled affiliates and accordingly agrees as follows:
(a) Subject to Section 7.5(b), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, While employed by the Company and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four twelve (412) years months (eighteen (18) months in the event of a termination by Executive for Good Reason based on the circumstances described in clause (i) or clause (iii) under the definition of Good Reason in Section 8.3 of this Agreement) following the Closing Datedate Executive ceases to be employed by the Company, undertakeif such termination occurs during the Employment Term (the “Restricted Period”), manageExecutive will not directly or indirectly, participate in, carry on or be engaged in, or (i) engage in any manner own“Competitive Business” (defined below) for Executive’s own account, operate, or, with respect (ii) enter the employ of or render any services to any Competing Business Activitiesperson engaged in any Competitive Business, advise, assist (iii) acquire a financial interest in or consult with, or have an interest in, otherwise become actively involved with any other Person thatperson engaged in any Competitive Business, directly or indirectly, undertakesas an individual, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere in the world, including as a partner, shareholder, memberofficer, employeedirector, principal, agent, trustee or consultant; and
(ii) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit(iv) interfere with business relationships (whether formed before or after the Effective Date) between the Company and its customers, entice, encourage or influencesuppliers, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companiesconsultants.
(b) Notwithstanding For purposes of this Section 7.5(a)(ii)9, Sellers a “Competitive Business” means, as of any date and their Affiliates shall not be prohibited from including during the Restricted Period, any person or restricted in entity (including any way joint venture, partnership, firm, corporation or limited liability company) that produces, markets, distributes, sources, or otherwise commercially exploits products or services that are directly or indirectly competitive with respect to: products or services that are either (i) advertising job openings produced, marketed, distributed, sourced, or otherwise commercially exploited by use of newspapersthe Company, 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 in actual or soliciting any Transferred Employee who has terminated employment with Purchaser, demonstrably anticipated development by the Acquired Companies or any Affiliate thereof, at least nine (9) months prior to the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such PersonCompany.
(c) Seller expressly For purposes of this Section 9, the Company shall be construed to include the Company and its subsidiaries and controlled affiliates.
(d) Notwithstanding anything to the contrary in the Agreement, Executive may directly or indirectly own, solely as an investment, securities of any person engaged in the business of the Company which are publicly traded on a national or regional stock exchange or on the over-the-counter market if Executive is not a controlling person of, or a member of a group that controls, such person, and does not, directly or indirectly, own one percent (1%) or more of any class of securities of such person.
(e) During the Restricted Period, Executive will not, directly or indirectly, without the Company’s written consent, hire (either directly or indirectly), solicit or encourage to cease to work with the Company any Company employee or any consultant (including employees of such consultant) whose primary business activity consists of providing services to the Company.
(f) Executive understands that the provisions of this Section 9.1 may limit his ability to earn a livelihood in a business similar to the business of the Company, but nevertheless agrees and hereby acknowledges that (i) each such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (ii) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (iii) such provisions are not harmful to the general public, and (iv) such provisions are not unduly burdensome to Executive. In consideration of the foregoing and in light of Executive’s education, skills and abilities, Executive agrees that he shall not assert that, and it should not be considered that, any provisions of Section 9.1 otherwise are void, voidable or unenforceable or should be voided or held unenforceable.
(g) It is expressly understood and agreed that, although Executive and the Company consider the restrictions contained in this Section 7.5 are reasonable in all respects (including with respect 9.1 to subject matterbe reasonable, geographical scope and if a judicial determination is made by a court of competent jurisdiction that the 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 or territory or any other restriction contained in this Section 7.5 and (iv) Purchaser would not have entered into 9.1 or elsewhere in this Agreement or any is an unenforceable restriction against Executive, the provisions of the transactions contemplated hereby without the restrictions contained in this Section 7.5 Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and this Section 7.5 being in full force territory and effect and binding and enforceable covenants of Sellerto such maximum extent as such court may judicially determine or indicate to be enforceable. If a Alternatively, if any 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 time period enforceability 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 covenantother restrictions contained herein.
Appears in 1 contract
Samples: Employment Agreement (Poly Shield Technologies 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) Subject Agreement not to Section 7.5(b), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):Compete.
(i) for a period of four Each Seller other than Vlaams Innovatiefonds (4Vinnof) years following CommVa., KMOFIN NV (LRM), and Allegro Investment Fund NV agrees that, except as otherwise provided herein, during the Closing DateNon‑Competition Period, undertake, manage, participate in, carry on he or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thatit shall not, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere in the world, including whether as a partner, shareholder, member, employee, principal, agent, trustee officer, director, employee, investor, consultant, stockholder or consultantotherwise, alone or in association with any other Person, except for the account of Buyer, its affiliates or the Acquired Companies:
(A) carry on, manage, operate or become engaged in, or otherwise take part in, a Restricted Activity in a Restricted Area; or
(B) be employed by or render services to, or own, share in the earnings of, or invest in the stock, bonds or other securities of any Person engaged in a Restricted Activity in a Restricted Area.
(ii) Each of Vlaams Innovatiefonds (Vinnof) CommVa., KMOFIN NV (LRM), and Allegro Investment Fund NV agrees that during the Non-Competition Period it:
(A) will not appoint, nominate for appointment or vote in favor of the appointment of any of the 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 a Restricted Area; and
(iiB) (A) for will cause the directors, officers, employees, agents or other representatives who have ever served, on its behalf or as its nominee, as a period director of three (3) years following or an observer on the Closing Dateboard of directors of any Acquired Company, solicit, entice, encourage or influence, or attempt not to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign disclose or otherwise leave the employ of Purchaser or the communicate any confidential information relating to any Acquired Companies or otherwise hire, employ, engage or contract with any member of the Senior Management of the Business Company 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) that is primarily engaged in Competing Business Activities; or (v) acquiring (in a single transaction or series of related transactions) any Person that iscarries on, manages, operates, engages in, or has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Person.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 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 otherwise takes part 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 a Restricted Activity 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.Restricted Area
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(b), as a material inducement to Purchaser to enter into this Agreement, Neither Seller shall not, and shall cause its Affiliates not toshall, directly or indirectly (whether by itselfindirectly, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four thirty (430) years following months commencing on the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, Date with respect to any Competing Business Activitiesthe manufacture, advisesale, assist marketing or consult withdistribution 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 have an interest indistribution of pancake, granola bars and any other Person thatproducts which are being manufactured, directly marketed, sold and distributed by the Company as of the Closing Date (collectively, the “Restricted Period”), engage in or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere assist others in engaging in the worldmanufacture, 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 entity that engages directly in the Business in the Territory in any active capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
or (iiiii) intentionally interfere in any material respect with the business relationships (Awhether formed prior to or after the date of this Agreement) for a period 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) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A%) of the Seller Disclosure Schedule (collectively, the “Senior Management issued and outstanding securities of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, entity traded on any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companiesnational securities exchange.
(b) Notwithstanding During the period one (1) year from the Closing Date, neither Seller shall, 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 general solicitation which is not directed specifically to any such employees; provided, however, that nothing in this Section 7.5(a)(ii), Sellers and their Affiliates 6.01(b) shall not be prohibited construed so as to prevent either Seller from or restricted in any way with respect to: hiring (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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or employee whose employment has been terminated by Purchaser, the Acquired Companies Company or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller Buyer for cause or its Affiliates prior thereto; (iiiii) continuing to engage in any after one hundred eighty (180) business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of days from the date of this Agreementtermination of employment, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 employee whose employment has a subsidiary, division, group, franchise or segment that is, engaged in any Competing Business Activity and, following been terminated by 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personemployee.
(c) During the period one (1) year from the Closing Date, neither Seller expressly acknowledges that (i) each shall, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the restrictions contained in this Section 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 Company or any potential clients or customers of the transactions contemplated hereby without Company for purposes of diverting their business or services from 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 covenantCompany.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Creatd, Inc.)
Non-Competition; Non-Solicitation. (a) Subject During Employee's employment by the Company and, if Employee is terminated for Cause or if the Employment Term is terminated pursuant to Section 7.5(b6(d) or (e), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following one year after Employee's termination of employment, Employee shall not, except with the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thatprior written consent of the Board, directly or indirectly, undertakesown, managesmanage, participates inoperate, carries on join, control, finance or is engaged in, any Competing Business Activities anywhere participate in the worldownership, including management, operation, control or financing of, or be connected as a partneran officer, shareholder, memberdirector, employee, partner, principal, agent, trustee representative, consultant or consultant; andotherwise with, or use or permit Employee's name to be used in connection with, any business or enterprise in North America in which Employee would be engaged in any selling any product competitive to 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 Company presently does business.
(iib) The foregoing restrictions shall not be construed to prohibit the ownership by Employee of less than 5% of any class of securities of any corporation which is engaged in any of the foregoing businesses having a class of securities registered pursuant to the Exchange Act, provided that such ownership represents a passive investment and that neither Employee nor any group of persons including Employee in any way, either directly or 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 foregoing.
(Ac) During Employee's employment by the 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 three one year after Employee's termination of employment, Employee shall not, except with the prior written consent of the Board, directly or indirectly, (3i) years following the Closing Date, solicit, enticedivert, encourage or influencetake away, or attempt to solicit, entice, encourage divert or influence, or attempt to solicit, entice, encourage or influencetake away, any of individuals listed on Schedule 7.5(a)(ii)(A) the Company's "Principal Customers," defined for the purposes hereof to include any customer of the Seller Disclosure Schedule Company, from which $100,000 or more of annual gross revenues are derived at such time, or (collectively, the “Senior Management ii) encourage any Principal Customer to reduce its patronage of the Business”Company.
(d) During Employee's employment by the Company and, if Employee is terminated for Cause or if the Employment Term is terminated pursuant to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 Section 6(d) or (B) e), for a period of two (2) years following one year after Employee's termination of employment, Employee shall not, except with the Closing Dateprior written consent of the Board, solicitdirectly or indirectly, entice, encourage solicit or influencehire, or attempt to solicit, entice, encourage the solicitation or influence, or attempt to solicit, entice, encourage or influencehiring of, any Transferred Employee to resign person who was a managerial or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as higher level employee of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of Company at any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Person.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 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 Employee's employment by the Company by any breach 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 restrictive covenantformer employee's employment by the Company has terminated.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFor a period of 2 years commencing on the Closing Date (the “Restricted Period”), each Member holding 10% or more of the Interests as of the Closing Date (each a material inducement to Purchaser to enter into this Agreement, Seller “Restricted Member”) shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):indirectly,
(i) for a period of four engage in or assist others in engaging in the Business or any business that is competitive with the Business in the Territory; (4ii) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, in any other Person that, that engages directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere indirectly in the worldBusiness or any business that is competitive with the Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
(ii) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage intentionally interfere in any material respect with the business relationships (other than the Business) that Seller whether formed prior to or any of its Affiliates (other than the Acquired Companies) engages in as of after the date of this Agreement) between the Company and clients, including the operations set forth on Schedule 7.5(b)(iii) customers or suppliers of the Seller Disclosure Schedule; Company. Notwithstanding the foregoing, nothing in this Section 7.10 shall prohibit any Restricted Member from (ivx) holding performing its obligations under the Transition Services Agreement or (y) owning, directly or indirectly, solely as a passive investment not more than five percent (5%) of the outstanding voting an investment, securities of any company (whether public or private) that Person traded on any national securities exchange if such Restricted Member is primarily engaged in Competing Business Activities; or (v) acquiring (in not a single transaction or series of related transactions) any controlling Person that isof, or has a subsidiarymember of a group which controls, divisionsuch Restricted Member and does not, groupdirectly or indirectly, franchise own 2% or segment that is, engaged in more of 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 class of such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues securities of such Person.
(b) During the Restricted Period, each Restricted Member shall not, directly or indirectly, hire or solicit any employee or independent contractor of the Company or encourage any such employee or independent contractor to leave such employment or relationship with the Company or hire any such employee or independent contractor who has left such employment or relationship with the Company, except pursuant to a general solicitation which is not directed specifically to any such employees or contractors.
(c) Seller expressly During the Restricted Period, each Restricted Member shall not, directly or indirectly, solicit or entice, or attempt to solicit or entice, any vendor, suppliers, clients or customers of the Company or the Business or potential clients or customers of the Company or the Business for purposes of diverting their business or services from the Company or the Business.
(d) Each Restricted Member acknowledges that a breach or threatened breach of this 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 Restricted 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 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 (iwithout any requirement to post bond).
(e) each of Each Restricted Member acknowledges that the restrictions contained in this Section 7.5 7.10 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, the legitimate interests of Buyer and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 7.10 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service, or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 7.10 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 1 contract
Samples: Acquisition Option Agreement (Cardiovascular Systems Inc)
Non-Competition; Non-Solicitation. (a) Subject For a period equal to Section 7.5(b), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
the longer of (i) for a period of four (4) five years following the Closing DateDate and (ii) one year after the termination of the applicable Seller’s Employment Agreement (the “Restricted Period”), undertake, manage, participate in, carry on or be engaged inneither Seller nor either Stockholder shall, or in shall permit any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thatof his Affiliates to, directly or indirectly, undertakes, manages, participates in, carries on (i) engage in or is engaged in, any Competing Business Activities anywhere assist others in engaging in the worldRestricted 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, shareholderstockholder, member, employee, principal, agent, trustee or consultant; and
or (iiiii) intentionally interfere in any material respect with the business relationships (Awhether formed prior to or after the date of this Agreement) for a period between the Company and customers or suppliers of three (3) years following the Closing DateCompany. Notwithstanding the foregoing, solicitSeller and the Stockholders may own, enticedirectly or indirectly, encourage solely as an investment, securities of any Person traded on any national securities exchange if Seller or influencethe Stockholders are not controlling Persons of, or attempt to solicitmembers of a group which controls, enticesuch Person and if Seller and the Stockholders do not, encourage directly or influenceindirectly, own 5% or attempt to solicit, entice, encourage or influence, more of any class of individuals listed on Schedule 7.5(a)(ii)(A) securities of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companiessuch Person.
(b) Notwithstanding During the Restricted Period, neither Seller nor either Stockholder shall, nor shall the Seller or the Stockholders permit any of his 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 general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 7.5(a)(ii)5.02(b) shall prevent Seller, Sellers and the Stockholders or any of their Affiliates shall not be prohibited from or restricted in any way with respect to: hiring (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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or employee whose employment has been terminated by Purchaser, the Acquired Companies Company or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller Buyer or its Affiliates prior thereto; (iiiii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of after 180 days from the date of this Agreementtermination of employment, including any employee whose employment has been terminated by the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personemployee.
(c) During the Restricted Period, neither the Stockholder nor either Seller expressly acknowledges shall, nor shall Seller or either Stockholder permit any of his 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 and the Stockholders acknowledge that a breach or threatened breach of this Section 5.02 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and they each hereby agree that in the event of a breach or a threatened breach by Seller or the Stockholders 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 (iwithout any requirement to post bond).
(e) each of Seller and the Stockholders acknowledge that the restrictions contained in this Section 7.5 5.02 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, the legitimate interests of Buyer and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service, or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 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.
(f) Nothing in this Section 7.5 being 5.02 shall prohibit Warden Trading Associates Ltd. from owning an equity interest 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.Elmec Ltd.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFor a period of five years commencing on the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, Seller Parent shall not, and shall cause not permit any of its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on (i) engage in or is engaged in, any Competing Business Activities anywhere assist others in engaging in the worldRestricted 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 trustee, or consultant; and
(ii) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit(iii) cause, entice, encourage or influenceinduce, or attempt to solicitencourage any material actual or prospective client, enticecustomer, encourage supplier, or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any member of the Senior Management licensor of the Business to perform services other than for (including any existing or former client or customer of Seller and any Person that becomes a client or customer of the benefit of Purchaser or Business after the Acquired Companies or (B) for a period of two (2) years following the Closing Date, solicit, entice, encourage or influenceClosing), or attempt any other Person who has a material business relationship with the Business, to solicitterminate or modify any such actual or prospective relationship. Notwithstanding the foregoing, entice(x) Parent may own, encourage directly or influenceindirectly, solely as an investment, securities of any Person traded on any national securities exchange if Parent is not a controlling Person of, or attempt to solicita member of a group which controls, enticesuch Person and does not, encourage directly or influenceindirectly, own 2% or more of any Transferred Employee to resign class of securities of such Person, and (y) Parent may acquire, directly or otherwise leave indirectly, the employ stock or substantially all the assets of Purchaser or a Person engaged in the Acquired Companies or otherwise hireRestricted Business if such Person’s prior twelve months’ revenue arising out of the Restricted Business does not constitute more than $10,000,000, employ, engage or contract with and such Person is not an Affiliate of any Transferred Employee to perform services other than for the benefit of Purchaser or the Acquired CompaniesPerson set forth on Schedule 6.7(a).
(b) Notwithstanding Section 7.5(a)(ii)During the Restricted Period, Sellers Parent shall not, and their Affiliates shall not be prohibited permit any of its Affiliates to, directly or indirectly, hire or solicit any Transferred Business Employee, or encourage any such Transferred Business Employee to leave the employment of Buyer, 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 Parent or any of its Affiliates from or restricted in any way with respect to: hiring (i) advertising job openings any Transferred Business Employee whose employment with Buyer has been terminated by use of newspapers, magazines, the Internet and other media not specifically directed at individual Transferred Employees Buyer 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 after 180 days from the date of first contact by Seller or its Affiliates with such Transferred Employeetermination of employment, or any employee whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personemployee.
(c) Seller expressly Parent acknowledges that a breach or threatened breach of this Section 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 Parent 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 (iwithout any requirement to post bond).
(d) each of Parent acknowledges that the restrictions contained in this Section 7.5 6.7 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, the legitimate interests of Buyer and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute goodAgreement, valid and binding consideration for Seller’s obligations, covenants are no greater than are reasonably necessary to protect the interest of Buyer and agreements its affiliates. In the event that any covenant contained in this Section 7.5 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service, or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 6.7 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFor a period of five (5) years commencing on the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause not permit any of its Affiliates (for purposes of this Section 5.12(a) only, “Affiliates” shall not include parties other than TECO Energy, Inc. and its direct or indirect Subsidiaries) to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on (i) engage in or is engaged in, any Competing Business Activities anywhere assist others in engaging in the worldRestricted 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; and
or (iiiii) intentionally interfere in any material respect with the business relationships (Awhether formed prior to or after the date of this Agreement) for between the Company and its Subsidiaries, on the one hand, and customers or suppliers of the Company and its Subsidiaries, on the other hand. 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 period of three (3) years following the Closing Date, solicit, entice, encourage or influencecontrolling Person of, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any a member of the Senior Management a group which controls, such Person and does not, directly or indirectly, own 5% or more of the Business to perform services other than for the benefit any class of Purchaser or the Acquired Companies or (B) for a period securities of two (2) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companiessuch Person.
(b) Notwithstanding Section 7.5(a)(ii)During the Restricted Period, Sellers Seller shall not, and their Affiliates shall not be prohibited permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of the Company or its Subsidiaries 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 5.12(b) shall prevent Seller or any of its Affiliates from or restricted in any way with respect to: hiring (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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or employee whose employment has been terminated by the Company, its Subsidiaries, or Purchaser, (ii) after 365 days from the Acquired Companies or date of termination of employment, any Affiliate thereofemployee whose employment has been terminated by the employee, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing any employee who responds to engage in solicitation not specifically targeted at employees of the Company or its Subsidiaries (including by a search firm or recruiting agency) or (iv) any business (other than the Business) that employee who initiates discussions regarding employment without any solicitation by Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date violation of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Person.
(c) During the Restricted Period, Seller expressly 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 its Subsidiaries or potential clients or customers of the Company or its Subsidiaries for purposes of diverting their business or services from the Company or its Subsidiaries.
(d) Seller acknowledges that a breach or threatened breach of this Section 5.12 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 Seller 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 (iwithout any requirement to post bond).
(e) each of Seller acknowledges that the restrictions contained in this Section 7.5 5.12 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, the legitimate interests of Purchaser and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Purchaser to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 5.12 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service, or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 5.12 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) Subject to Except as permitted by this Section 7.5(b)5.9, as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following commencing on the Closing DateDate (the “Restricted Period”), undertakeSeller shall not, manage, participate in, carry on or be engaged in, or in and shall not permit any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thatof its Affiliates to, directly or indirectly, undertakes, manages, participates in, carries on (i) engage in or is engaged in, any Competing Business Activities anywhere assist others in engaging in the worldRestricted 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; andor (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company Group. Notwithstanding the foregoing, nothing in this Agreement shall preclude, prohibit or restrict Seller or its Affiliates from any of the following:
(i) owning, 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 1% or more of any class of securities of such Person;
(ii) (A) for engaging in any manner in any business activity that would otherwise violate this Section 5.9 to the extent such business activity is conducted on the date hereof through one of Seller’s Affiliates that is not a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) member of the Seller Disclosure Schedule Company Group (collectivelyeach, the an “Senior Management of the Existing Business”) to resign or otherwise leave and the employ gross revenue from the competing portion of Purchaser or such Existing Business does not exceed the Acquired Companies or otherwise hire, employ, engage or contract with any member lesser of 15% of the Senior Management aggregate revenue of such Existing Business or $20,000,000.00 for the fiscal year immediately preceding the measurement date;
(iii) engaging in any manner in any business activity that would otherwise violate this Section 5.9 that is acquired from any Person (an “After-Acquired Business”) or is carried on by any Person that is acquired by Seller or any of its Affiliates in each case after the Closing (an “After-Acquired Company”) provided that, with respect to this clause (3), the gross revenue from the competing portion of such After-Acquired Business or After-Acquired Company does not exceed the lesser of 15% of the aggregate revenue of any such After-Acquired Business to perform services other than or After-Acquired Company or $20,000,000.00 for the benefit fiscal year immediately preceding the measurement date; or
(iv) providing consulting services of Purchaser or the Acquired Companies or (B) for a period type provided by CBIZ KA Consulting Services, LLC, as described in reasonable detail in Section 5.9 of two (2) years following the Closing DateDisclosure Schedule, solicit, entice, encourage or influence, or attempt on the date of this Agreement to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companieshealthcare industry.
(b) Notwithstanding Section 7.5(a)(ii)During the Restricted Period, Sellers Seller shall not, and their Affiliates shall not be prohibited permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of a member of the Company Group 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 5.9(b) shall prevent Seller or any of its Affiliates from or restricted in any way with respect to: hiring (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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or employee whose employment has been terminated by Purchaser, a member of the Acquired Companies Company Group or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iiiii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of after 180 days from the date of this Agreementtermination of employment, including any employee whose employment has been terminated by the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personemployee.
(c) Except with respect to any activity permitted pursuant clauses (1), (2), (3) or (4) of Section 5.9(a), during the Restricted Period, Seller expressly 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 any member of the Company Group or potential clients or customers of any member of the Company Group for purposes of diverting their business or services from a member of the Company Group.
(d) Seller acknowledges that a breach or threatened breach of this Section 5.9 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 (iwithout any requirement to post bond).
(e) each of Seller acknowledges that the restrictions contained in this Section 7.5 5.9 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, the legitimate interests of Buyer and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 5.9 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service, or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 5.9 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.
(f) The parties hereto agree that it is their intent that each Member of the Company Group is and shall be a third party beneficiary of the terms, conditions, provisions and restrictions of 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 covenant5.9.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(b), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for For a period of four (4) 2 years following after the Closing Distribution Date, undertakewithout the written consent of Parent, manageneither Sysorex nor any member of the Sysorex Group, participate innor any of their Affiliates, carry on shall directly or be engaged inindirectly, develop, commercialize, manufacture or distribute, or in license, authorize or otherwise enable or assist any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thatThird Party to, directly or indirectly, undertakesdevelop, managescommercialize, participates in, carries on manufacture or is engaged indistribute, any Competing product or service that competes with the Parent Business Activities anywhere in the world, including as a partner, shareholder, member, employee, principal, agent, trustee in each case other than the conduct by Sysorex or consultant; and
(ii) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any member of the Senior Management its Group 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired CompaniesSysorex Operating Activities.
(b) Notwithstanding Section 7.5(a)(ii), Sellers and their Affiliates shall not be prohibited from or restricted in any way with respect to: In the event that (i) advertising job openings by use Sysorex or any member of newspapersthe Sysorex Group desires to purchase (whether structured as an acquisition of assets, magazinesstock, the Internet merger or otherwise) a Person or business that conducts any activities substantially similar to Parent’s Business and other media not specifically directed at individual Transferred Employees or hiring any such Transferred Employees as a result thereof; (ii) hiring such purchase or soliciting the ownership by Sysorex or any Transferred Employee who has terminated employment with Purchasermember of the Sysorex Group of such Person or business would result in a breach of Section 5.5(a) solely due to the conduct of such incidental activities, then, upon Sysorex’s written request to Parent, the Acquired Companies Parties shall enter into good faith discussions regarding a potential agreement that would include terms, conditions and restrictions pursuant to which Sysorex or such member would be permitted to complete such purchase without breaching Section 5.5(a) (provided, however, that neither Party shall have any Affiliate thereof, at least nine (9) months prior obligation hereunder to the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in any Competing Business Activity and, following such acquisition, actively engaging in enter into any such Competing Business Activity, so long as for the most recent fiscal year ended prior to the date of such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personagreement).
(c) Seller expressly acknowledges that (i) each For a period of one year after the Distribution Date, neither Party nor any member of its Group shall directly or indirectly solicit or recruit for employment any current or former employees of the other Party or any member of its Group without the written consent of such other Party; provided that an individual shall not be deemed to have been solicited in violation of this Section 5.5(c) if such individual ceased to be employed by such other Party or any member of its Group or if such individual voluntarily contacts such other Party or any member of its Group. This prohibition on solicitation shall not apply to a public solicitation or a general solicitation (including through a bona fide search firm), so long as it is not targeted toward employees of the applicable Group.
(d) Each Party acknowledges and agrees that the restrictions contained in this Section 7.5 5.5 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 goodreasonable, valid and binding consideration necessary in light of the Parties’ circumstances and for Seller’s obligations, covenants the adequate protection of the Parties’ businesses and agreements contained in this Section 7.5 and (iv) Purchaser that the Parties would not have entered into this Agreement without such restrictions. If, notwithstanding the foregoing, a competent court or any of arbitrator determines that such restrictions are too broad or otherwise unreasonable under applicable Law, then, notwithstanding anything to the transactions contemplated contrary in Section 10.6, such court or arbitrator is hereby without requested and authorized by the Parties to modify such restrictions contained so that, after such modification, they reflect the maximum restrictions allowable under applicable Laws.
(e) Nothing in this Section 7.5 and this Section 7.5 being in full force and effect and binding and enforceable covenants 5.5 shall prohibit Xxxxx Xxx, who will continue to serve as a director 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 Sysorex and the geographic coverage Chief Executive Officer and scope will be deemed a director of Parent from engaging in the Parent Business prior to comprise and after 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 covenantEffective Time.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFor a period of five (5) years commencing on the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, Seller each Shareholder shall not, and shall cause not permit any of its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on (i) engage in or is engaged in, any Competing Business Activities anywhere assist others in engaging in the world, including as a partner, shareholder, member, employee, principal, agent, trustee Restricted Business in the Territory or consultant; and
(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, own one percent (A1%) for or more of any class of securities of such Person. For purposes of clarity, and notwithstanding anything to the contrary set forth herein (i) Xxxxxxx Xxxxxx shall be permitted to continue to own and operate in the same manner (or on a period of three (3larger scale) years following as operated prior to the Closing Date, solicitand serve as an executive of, enticeArmorock, encourage 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 influence, or attempt Section 5.06(c) and (ii) actions taken by a Landlord to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any mitigate its damages on account of individuals listed on Schedule 7.5(a)(ii)(A) a breach by the Company of its obligations under a lease between the Seller Disclosure Schedule (collectively, the “Senior Management Company and that Landlord shall not constitute a breach of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companiesthis Section 5.06(a).
(b) Notwithstanding Section 7.5(a)(iiDuring the Restricted Period, each Shareholder shall not, and shall not permit any of its Affiliates to, directly or indirectly, solicit any Person who was an employee of the Company on the Closing Date (each a “Restricted Employee”), Sellers and their or encourage any such Restricted Employee to leave such employment or hire any such employee, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, however, that nothing in this Section 5.06(b) shall prevent a Shareholder or any of its Affiliates shall not be prohibited from soliciting or restricted in any way with respect to: hiring (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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or employee whose employment has been terminated by Purchaser, the Acquired Companies Company or Parent or any Affiliate thereofof Parent, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iiiii) continuing to engage in any business after one hundred twenty (other than the Business120) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of days from the date of this Agreementtermination of employment, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in any Competing Business Activity and, following such acquisition, actively engaging in any such Competing Business Activity, so long as for employee whose employment with the most recent fiscal year ended prior to Company or Parent or any Affiliate of Parent has been terminated by the date of such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent employee (15%) of the total consolidated revenues of such Personincluding a resignation by employee).
(c) Seller expressly 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 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 (iwithout any requirement to post bond).
(e) each of Each Shareholder acknowledges that the restrictions contained in this Section 7.5 5.06 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, the legitimate interests of Parent and value of, the Acquired Companies’ businesses (including Surviving Corporation and constitute a material inducement to Parent and the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) Surviving Corporation to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service, or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 5.06 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 1 contract
Samples: Merger Agreement (Northwest Pipe Co)
Non-Competition; Non-Solicitation. (a) Subject Other than as set forth on Exhibit F hereto, for so long as the Buyer or any of his Affiliates directly or indirectly holds any shares in the Company and for a period two (2) years after the Buyer and each of his Affiliates cease to Section 7.5(b)directly or indirectly hold any shares in the Company, as a material inducement to Purchaser to enter into this Agreement, Seller the Buyer shall not, and shall cause its his Affiliates not to, directly or indirectly indirectly: own any interest in, manage, control, participate in (whether by itselfas an owner, operator, manager, consultant, officer, director, employee, investor, agent, representative or otherwise), consult with, render services (including through an Affiliate or in partnership or conjunction with or foroutsourcing, or as a member, owner, consultant an intermediary or agent of, any other Person):
(ior otherwise) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged otherwise engage in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on or is engaged inprovide assistance to, any Competing Business Activities anywhere other than through the Seller or its Subsidiaries; provided that nothing in this Section 6.8(a) shall prohibit the Buyer from holding less than two (2%) of any series or class of publicly-traded equity securities of any company that engages in Competing Business.
(b) For so long as the Buyer or any of his Affiliates directly or indirectly holds any shares in the world, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
(ii) (A) Company and for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 after the Closing DateBuyer and each of his Affiliates cease to directly or indirectly hold any shares in the Company, the Buyer shall not, and shall cause his Affiliates not to, solicit, enticerecruit, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hireoffer employment, employ, engage or contract with any Transferred Employee to perform services other than for the benefit of Purchaser or the Acquired Companies.
(b) 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 consultant, lure or soliciting entice away any Transferred Employee Person who has terminated employment with Purchaseris an employee or a management member of the Seller, the Acquired Companies or any Affiliate thereof, at least nine (9) months prior to the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller Retained Subsidiary or any of its Affiliates (their respective Subsidiaries, or in any other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public manner persuade or private) that is primarily engaged in Competing Business Activities; or (v) acquiring (in a single transaction or series of related transactions) attempt to persuade any Person that isto terminate his or her employment relationship with the Seller, any Retained Subsidiary or has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Persontheir respective Subsidiaries.
(c) Seller expressly acknowledges that (i) each For so long as the Buyer remains to be an employee of the restrictions contained in this Section 7.5 are reasonable in all respects (including with respect to subject matterSeller, 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 any Retained Subsidiary 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 broadtheir respective Subsidiaries, the restrictive time period will be deemed Buyer shall devote a reasonable amount of his working time, attention and skills to be the longest period permissible under applicable Legal Requirement performance of his duties in such capacity and shall faithfully and diligently serve 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 covenantSeller, the contemplated restricted period shall be extended during the term of any breach of such restrictive covenantRetained Subsidiary and/or such other Subsidiary in accordance with his employment agreement or arrangement with such Person(s).
Appears in 1 contract
Samples: Share Purchase and Subscription Agreement (ReneSola LTD)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFor a period of two years commencing on the Closing Date (the "Restricted Period"), as a material inducement to Purchaser to enter into this Agreement, Seller Sellers shall not, and shall cause its not permit any of their Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on (i) engage in or is engaged in, any Competing Business Activities anywhere assist others in engaging in the worldRestricted 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; and
or (iiiii) 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, (x) Sellers may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if a 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; or (y) Sellers may be employed by a diversified entity that has a division or subsidiary that engages in the Restricted Business provided that at no time during the Restricted Period shall Seller (A) for be employed by or in a period of three (3) years following division or subsidiary related to the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Restricted Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 ; and (B) provide services directly or indirectly to or for a period of two (2) years following the Closing Dateany Restricted Business activities, solicit, entice, encourage strategies or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.services..
(b) Notwithstanding Section 7.5(a)(ii)During the Restricted Period, Sellers shall not, and shall not permit any of their Affiliates to, directly or indirectly, hire or solicit any employee of the Company or Buyer or encourage any such employee to leave such employment or hire any such employee who has left such employment, except if such solicitation or hiring is or was pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 5.04(b) shall not be prohibited prevent Sellers or any of their Affiliates from or restricted in any way with respect to: hiring (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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or employee whose employment has been terminated by Purchaser, the Acquired Companies Company or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller Buyer or its Affiliates prior thereto; (iiiii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of after 180 days from the date of this Agreementtermination of employment, including any employee whose employment has been terminated by the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personemployee.
(c) Seller expressly acknowledges Sellers acknowledge that a breach or threatened breach of this Section 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 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 (iwithout any requirement to post bond).
(d) each of Sellers acknowledge that the restrictions contained in this Section 7.5 5.04 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, the legitimate interests of Buyer and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service, or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 5.04 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) Subject During Employee's employment by the Company and, if Employee is terminated for Cause or if the Employment Term is terminated pursuant to Section 7.5(b6(d) or (e), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following one year after Employee's termination of employment, Employee shall not, except with the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thatprior written consent of the Board, directly or indirectly, undertakesown, managesmanage, participates inoperate, carries on join, control, finance or is engaged in, any Competing Business Activities anywhere participate in the worldownership, including management, operation, control or financing of, or be connected as a partneran officer, shareholder, memberdirector, employee, partner, principal, agent, trustee representative, consultant or consultant; andotherwise with, or use or permit Employee's name to be used in connection with, any business or enterprise in North America in which Employee would be engaged in any selling any product competitive to 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 Company presently does business.
(iib) The foregoing restrictions shall not be construed to prohibit the ownership by Employee of less than 5% of any class of securities of any corporation which is engaged in any of the foregoing businesses having a class of securities registered pursuant to the Exchange Act, provided that such ownership represents a passive investment and that neither Employee nor any group of persons including Employee in any way, either directly or 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 foregoing.
(Ac) Employee further covenants and agrees that during Employee's employment by the Company and for a the period of three one year thereafter, Employee shall not, directly or indirectly, (3i) years following the Closing Date, solicit, enticedivert, encourage or influencetake away, or attempt to solicit, entice, encourage divert or influence, or attempt to solicit, entice, encourage or influencetake away, any of individuals listed on Schedule 7.5(a)(ii)(A) the Company's "Principal Customers," defined for the purposes hereof to include any customer of the Seller Disclosure Schedule Company, from which $100,000 or more of annual gross revenues are derived at such time, or (collectively, the “Senior Management ii) encourage any Principal Customer to reduce its patronage of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired CompaniesCompany.
(bd) Notwithstanding Section 7.5(a)(ii)Employee further covenants and agrees that during Employee's employment by the Company and for the period of one year thereafter, Sellers and their Affiliates Employee shall not be prohibited from not, except with the prior written consent of the Board, directly or restricted in any way with respect to: (i) advertising job openings by use of newspapersindirectly, magazinessolicit or hire, or encourage the Internet and other media not specifically directed at individual Transferred Employees solicitation or hiring of, any such Transferred Employees as person who was a result thereof; (ii) hiring managerial 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as higher level employee of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of Company at any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Person.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 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 Employee's employment by the Company by any breach 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 restrictive covenantformer employee's employment by the Company has terminated.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFor a period of five years commencing on the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause not permit any of its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four engage in or assist others in engaging in the Restricted Business; (4ii) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, in any other Person that, that engages directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere indirectly in the worldRestricted Business in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; andor (iii) intentionally interfere in any material respect with the business relationships between any member of the Company Group and any customer or supplier of the Business. Notwithstanding the foregoing, Seller and its Affiliates may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if none of Seller or its 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.
(iib) (A) for For a period of (x) three years, with respect to executive officers and other senior management of the members of the Company Group and officers of the Vessels and (3y) years following one year with respect to all other employees and independent contractors of the Closing DateCompany Group, solicitSeller shall not, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, and shall not permit any of individuals listed on Schedule 7.5(a)(ii)(A) its Affiliates to directly or indirectly, solicit or hire or engage any employee of the Seller Disclosure Schedule (collectively, the “Senior Management Company Group or encourage any employee or independent contractor of the Business”) Company Group to resign leave or otherwise leave the employ of Purchaser diminish his or the Acquired Companies her employment or otherwise hire, employ, engage or contract other relationship 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 (BCompany Group; provided that nothing in this Section 5.09(b) for a period of two (2) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that prevent Seller or any of its Affiliates from (other than the Acquired Companiesi) engages engaging in as a general solicitation which is not directed specifically to any employee or independent contractor of the date of this AgreementCompany Group, including the operations set forth on Schedule 7.5(b)(iiior (ii) soliciting or hiring any employee of the Seller Disclosure Schedule; (iv) holding as a passive investment not Company Group whose employment has been terminated either by such employee or by any member of the Company Group more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 90 days prior to the date of such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Person.solicitation or hiring. 39
(c) During the Restricted Period, Seller expressly 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 Business for purposes of diverting all or any portion of their business or services from the Business.
(d) Seller acknowledges that a breach or threatened breach of this Section 5.09 will give rise to irreparable harm to Buyer, 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 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 having to post bond. The Restricted Period shall be tolled, and shall not run, during the period of any breach by Seller of this Section 5.09. In any action to enforce any term, condition or provision of this Section 5.09, the prevailing party in such action shall be entitled to recover its attorneys’ fees reasonably incurred in connection with such action.
(ie) each of Seller acknowledges that the restrictions contained in this Section 7.5 5.09 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, the legitimate interests of Buyer and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 5.09 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service, or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 5.09 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 provision hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction. No breach of any provision of this Agreement shall operate to extinguish Seller’s obligation to comply with this Section 7.5 being 5.09.
(f) Notwithstanding anything to the contrary, this Section 5.09 shall not apply to any third party or its Affiliates (other than Seller and the entities (or successors thereof) which were Affiliates of Seller immediately prior to the acquisition by such third party as contemplated below) which (i) acquires a majority equity interest in full force and effect and binding and enforceable covenants Seller or in any Affiliate of Seller. If , or (ii) acquires all or a court of competent jurisdiction finds that the time period of any portion of the foregoing covenants is too lengthy business or the geographic coverage assets of Seller or scope any Affiliate of any Seller, regardless 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 form of such restrictive covenanttransaction.
Appears in 1 contract
Samples: Stock Purchase Agreement (Gatx Corp)
Non-Competition; Non-Solicitation. 9.3.1 Each Founder and each Shareholder that is an employee or independent contractor of the Corporation and such other Shareholder designated as such by the Board with the con- sent of such Shareholder (a) Subject to Section 7.5(beach, an “Employee Shareholder”), for as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates not to, directly long as it holds Shares or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
until such time that is 18 months after the earlier of (i) the execution, upon termination as an employee or independent contractor of the Corporation, of a voting trust in respect of his Shares in favour of the Chief Executive Officer in form and content acceptable by the Board and the Chief Executive Officer and (ii) such Employee Shareholder (and his Permitted Transferee as the case may be) no longer holds any Shares (for a period of four (4) years following purposes hereof, the Closing Date“Applicable Period”), undertakeagrees that it will not, managewithout the Corporation’s express written consent, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thatanywhere within Québec, directly or indirectly, undertakesin any capacity whatso- ever, managesengage in any capacity whatsoever in a business that directly or indirectly competes with the Business, participates innor will such person engage in any other activities which conflict with such person’s obligations to the Corporation.
9.3.2 Each Employee Shareholder agrees that it will not, carries on or is engaged inwithout the Corporation’s express written consent, any Competing Business Activities anywhere in the world, including for as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
(ii) (A) long as he holds Shares and for a period of three [24] months thereafter DO NOT COPY
(3i) years following the Closing Datedirectly or indirectly, solicit, entice, encourage or influence, solicit or attempt to solicitinduce any employee of the Corporation or any consultant or contractor engaged by the Corporation, entice, encourage to leave his or influenceher employ or engagement, or attempt (ii) encourage any supplier to solicitterminate, enticein whole or in part, encourage or influenceits business relations with the Corporation.
9.3.3 Each Employee Shareholder agrees that it will not, any of individuals listed on Schedule 7.5(a)(ii)(A) of without the Seller Disclosure Schedule (collectivelyCorporation’s express written consent, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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) as long as he holds Shares and for a period of two [24] months thereafter
(2i) years following the Closing Datedirectly or indirectly, solicit, entice, encourage or influence, solicit or attempt to solicitinduce, entice, encourage one or influence, more of the clients or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise leave pro- spective clients of the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any Transferred Employee to perform services other than Corporation for the benefit purposes of Purchaser offering the products or services of a Person competing with the Acquired Companies.
Business, and (b) Notwithstanding Section 7.5(a)(ii)incite or induce, Sellers and directly or indirectly, in whole or in part, any client or prospective client of the Corporation to alter their Affiliates shall not be prohibited from or restricted in any way business relations 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 Corporation.
9.3.4 Each person subject to the date provisions of first contact by Seller or this Section 9.3 acknowledges that its Affiliates with such Transferred Employeeprovisions are reasonable and valid, or whose employment has been terminated by Purchaser, and that they are essential to the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than Corporation for the Business) that Seller or any adequate protection of its Affiliates (other than competitive edge in its market. Without limiting the Acquired Companies) engages in as generality of the date foregoing, each such person expressly agrees that the character, duration and geograph- ical scope of this Agreement, including the operations non-competition provisions set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Person.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 7.5 9.3 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 light of the transactions contemplated hereby without circumstances as they exist on 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 Sellerdate hereof. If Should a decision, however, be made at a later date by a court of competent jurisdiction finds that the time period character, duration or geographical scope of such provisions is unreasonable, then it is the intention and the agreement of the Parties hereto that this Agreement shall be construed by the court in such a manner as to impose only those restrictions on such person’s conduct that are reasonable in the light of the circumstances and as are necessary to assure to the Corpo- ration the benefits of this Section 9.3.
9.3.5 The Parties acknowledge that if the extent of any restriction contained in this Section 8.3 is judged to be unreasonable, which is not the opinion of the foregoing covenants is too lengthy or Parties on the geographic coverage or scope date hereof, such a restriction shall then be applicable up to the maximum permitted by the applicable law and the Parties hereby agree and accept that the extent of this restriction, if applica- ble, may be modified accordingly by any court without the context of any procedure to enforce and give effect to such restriction.
9.3.6 The Parties recognize that this Section 9.3 shall survive any termination 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 covenantthis Agreement.
Appears in 1 contract
Samples: Shareholder Agreement
Non-Competition; Non-Solicitation. (a) Subject to Each of Cxxx and Hxxx hereby acknowledges that he is familiar with the Trade Secrets and Business Confidential Information of the Target Companies. Each of Cxxx and Horn further acknowledges and agrees that the covenants and agreements set forth in this Section 7.5(b), as 8.08 were a material inducement to the Purchaser to enter into this Agreement, Seller shall notAgreement and to perform its obligations hereunder, and shall cause its that the Purchaser would not obtain the benefit of the bargain set forth in this Agreement as specifically negotiated by the parties hereto if Cxxx, Hxxx or any of their respective Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, were to breach any other Person):of the provisions of this Section 8.08.
(ib) for a period Each of four (4) years following Cxxx and Horn, in further consideration of the Purchase Price to be paid by the Purchaser hereunder and in order to protect the value of the goodwill of the Target Companies, agrees that, until the fourth anniversary of the Closing Date, undertakeneither Cxxx nor Hxxx shall (and each shall cause his Affiliates not to), managedirectly or indirectly, participate inacting alone or as an owner, carry on or be engaged inproprietor, officer, director, stockholder, member, partner, employee, joint venturer, agent, advisor, consultant, independent contractor, representative, investor, or in any manner own, operate, or, other capacity with respect to any other Person, (i) engage or participate in a Competing Business, (ii) own any interest in or manage, control or participate in the ownership, management or control of a Competing Business, (iii) provide any services to any Person with respect to a Competing Business, (iv) contact, solicit or enter into any Contract with any Company Employee or other agent or independent contractor of any Acquired Company relating to a Competing Business Activitiesor (v) seek to divert any supplier, advise, assist customer or consult with, or have an interest in, any other Person that, directly to the Knowledge of Cxxx or indirectlyHorn, undertakeshas a business relationship with any Acquired Company or with which any Acquired Company is actively planning or pursuing a business relationship, managesin the case of each clause (i) through (v), participates in, carries on or is engaged in, any Competing Business Activities anywhere in the worldRestricted Territories. As used herein, including as a partnerthe term “Competing Business” means any business, shareholderoperations or activities relating to the mining, memberproduction, employeesale, principalmarketing, agenttransportation or distribution of proppant (specifically meaning raw frac sand, trustee or consultant; and
(ii) (Aresin coated sand, resin coated ceramic and ceramic proppant) for a period any use in connection with hydraulic fracturing of three (3) years following oil and gas wxxxx or any other use relating to the Closing Date, solicit, entice, encourage or influenceexploration for, or attempt to solicitdevelopment or production of, enticeoil, encourage gas or influence, or attempt to solicit, entice, encourage or influence, any other hydrocarbons. Each of individuals listed on Schedule 7.5(a)(ii)(A) Cxxx and Horn represents that the businesses of the Seller Disclosure Schedule Target Companies have been or are contemplated to be conducted throughout the United States, Canada and Mexico (collectively, the “Senior Management Restricted Territories”) and that the geographic restrictions set forth in this Section 8.08 are reasonable and necessary to protect the goodwill of the Business”) to resign or otherwise leave Target Companies. Notwithstanding the employ foregoing provisions of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 this paragraph (B) for a period of two (2) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) Notwithstanding Section 7.5(a)(iia), Sellers and their Affiliates such provisions shall not be prohibited construed to prohibit Cxxx or Hxxx from owning or restricted in acquiring an investment of not more than 5% of the then-outstanding capital stock of 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 publicly-held Person whose stock is traded on 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereofsecurities exchange, so long as there was no solicitation prohibited hereunder by Seller neither Cxxx, Horn nor any of their respective Affiliates directly or its Affiliates prior thereto; (iii) continuing to engage indirectly participates, whether as an officer, director, employee, manager, consultant, advisor, independent contractor or in any business (other than capacity, in, or otherwise assists, such Person in the Business) that Seller or any management of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personbusiness and operations.
(c) Seller expressly acknowledges Each of the Sellers further agrees that until the third anniversary of the Closing Date it or he shall not (and shall cause its or his respective Affiliates not to) directly, or indirectly through another Person, (i) each solicit, induce or attempt to solicit or induce, any employee of any of the restrictions Target Companies to leave the employ of the applicable Target Company, except that the foregoing will not preclude the solicitation of any such employee resulting from general advertisements for employment placed by a Seller or its or his Affiliates (including any recruitment efforts conducted by any recruitment agency; provided that the Sellers, and their Affiliates have not directed such recruitment efforts at any of the employees of the Target Companies) or (ii) hire any former employee of any of the Target Companies unless at least one year has elapsed since the date of termination of his or her employment with the Target Companies; provided, further, that Sxx Xxxxxx shall be permitted to continue to serve as Cxxx’x part-time pilot after the Closing in a manner that does not unreasonably interfere with his ability to perform full time employment duties with the Company.
(d) If, at the time of enforcement of the covenants contained in this Section 7.5 8.08 (the “Restrictive Covenants”), a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court or arbitrator shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by Law. Each party has consulted with legal counsel regarding the Restrictive Covenants and based on such consultation has determined and hereby acknowledges that the Restrictive Covenants are reasonable in all respects (including with respect to subject matterterms of duration, geographical scope and time period) area restrictions and such restrictions are necessary to protect the goodwill of the Target Companies and their businesses and the substantial investment in such Persons made by the Purchaser’s interest in. Each party further agrees that it will not challenge the reasonableness of the duration, scope and area restrictions in any Claim with respect to the Restrictive Covenants, regardless of who initiates such Claim.
(e) If a party or its Affiliates breaches any of the Restrictive Covenants, the other parties shall have the right and remedy to have the Restrictive Covenants specifically enforced by any court of competent jurisdiction, it being agreed that any breach of the Restrictive Covenants would cause irreparable injury to the Purchaser and the Target Companies, and value of, that money damages would not provide an adequate remedy to the Acquired Companies’ businesses (including Purchaser and the goodwill inherent therein), (ii) Seller is primarily responsible for Target Companies in the creation event of such value, a breach.
(iiif) Notwithstanding anything to the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements contrary contained in this Section 7.5 Agreement, each of Kxxxxxxxx Trust, Axxxxxxxx Xxxxxxxx, Rxxxxx Xxxx, Vxx Xxxxxxx Family Trust, Mxxxxx Xxxxx, Cxxxx Xxxx, Axxxx Xxxx, Dxxxx Xxxx and (iv) Purchaser would the E Sellers shall not have entered into this Agreement be considered Affiliates of Horn or any Cxxx for purposes 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 covenant8.08.
Appears in 1 contract
Samples: Securities Purchase Agreement (Eagle Materials Inc)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFor a period of five (5) years commencing on the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, each Seller shall not, and shall cause its Affiliates each of their respective Related Parties not to, directly or indirectly (whether by itselfindirectly, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on engage in or be engaged in, or assist others in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere engaging in the worldRestricted Business in the Territory, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
(ii) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) Notwithstanding Section 7.5(a)(ii), Sellers and their Affiliates shall not be prohibited from or restricted have an interest in any way with respect to: (i) advertising job openings by use of newspapersPerson that engages directly or indirectly in the Restricted Business in the Territory in any capacity, magazines, the Internet and other media not specifically directed at individual Transferred Employees or hiring any such Transferred Employees including as a result thereofpartner, shareholder, member, employee, principal, agent, trustee or consultant; (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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing interfere with the business relationships (whether formed prior to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of after the date of this Agreement, including ) between the operations set forth on Schedule 7.5(b)(iii) Companies or their Subsidiaries and its customers or suppliers or other business relations of the Companies and their Subsidiaries. Notwithstanding the foregoing, each Seller Disclosure Schedule; (iv) holding may own, directly or indirectly, solely as a passive investment not more than five percent (5%) of the outstanding voting an investment, securities of any company (whether public or private) that Person traded on any national securities exchange if such Seller is primarily engaged in Competing Business Activities; or (v) acquiring (in not a single transaction or series of related transactions) any controlling Person that isof, or has a subsidiarymember of a group which controls, divisionsuch Person and does not, groupdirectly or indirectly, franchise own 5% or segment that is, engaged in more of 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 class of such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues securities of such Person.
(b) During the Restricted Period, each Seller shall not, and shall cause each of their respective Related Parties not to, directly or indirectly, hire/engage or solicit or attempt to hire/engage or solicit any employee or service provider of the Companies or their Subsidiaries or encourage any such employee or service provider to leave such employment/engagement or hire/engage any such employee or service provider who has left such employment/engagement, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 5.04(b) shall prevent any Seller or any of their respective Related Parties from hiring any employee or service provider whose employment was terminated more than one (1) year prior to the date of hiring/engagement.
(c) During the Restricted Period, each Seller expressly shall not, and shall cause each of their respective Related Parties not to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Companies or their Subsidiaries or potential clients or customers of the Companies or their Subsidiaries for purposes of diverting their business or services from the Companies or their Subsidiaries.
(d) Each Seller acknowledges that a breach or threatened breach of this Section 5.04 would give rise to irreparable harm to the Buyer Parties, 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 Buyer Parties 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 (iwithout any requirement to post bond).
(e) each of Each Seller acknowledges that the restrictions contained in this Section 7.5 5.04 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, the legitimate interests of the Buyer Parties and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Buyer Parties to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service, or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 5.04 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 1 contract
Samples: Stock Purchase and Contribution Agreement (Hydrofarm Holdings Group, Inc.)
Non-Competition; Non-Solicitation. (a) Subject In order for the Buyer to Section 7.5(b)have and enjoy the full benefit of the business of the Company and its Subsidiaries, and as a material inducement to Purchaser the Buyer to enter into this Agreement (without such inducement the Buyer would not have entered into this Agreement), for a period of eighteen (18) months commencing on the Closing Date (the “Restricted Period”; provided, that, with respect to the Buyer or the Seller, the Restricted Period shall be tolled during (and shall be deemed automatically extended by) any period in which such Party is in violation of any of the provisions of this Section 7.2), the Seller shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or Affiliate, in partnership or conjunction with or forwith, or as a manager, member, owner, consultant or agent of, any other Person):
(i) for launch, or agree to manage or operate, in any case, whether alone or in conjunction with one or more third parties, a period of four Competing Service, acquire a twenty-five percent (425%) years following the Closing Date, undertake, manage, participate in, carry on or be engaged greater financial or voting interest in a Competing Business or acquire a controlling interest (financial or otherwise) in, or in any manner ownthe right to control the management and operation of, operate, or, with respect to any a Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere in the world, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; andBusiness;
(ii) (Ax) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or intentionally influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) employee of the Seller Disclosure Schedule (collectively, the “Senior Management Company or any of the Business”) its Subsidiaries to resign or otherwise leave the employ of Purchaser the Company or the Acquired Companies or any of its Subsidiaries, (y) otherwise hire, employ, engage or contract with any member of the Senior Management of the Business such employee to perform services other than for the benefit of Purchaser the Company or the Acquired Companies any of its Subsidiaries or (Bz) hire, employ, engage or contract any Person set forth on Schedule 7.2(a)(ii) to perform services other than for a period the benefit of two the Company or any of its Subsidiaries; or
(2iii) years following the Closing Date, solicit, entice, encourage or intentionally influence, or attempt to solicit, entice, encourage or intentionally influence, any supplier, distributor, content provider or other business associate of the Company or any of its Subsidiaries (including any Person who has been a business associate of the Company at any time during the period of twelve (12) months before the Closing) anywhere in the United States to alter, reduce or terminate its business relationship with the Company or any of its Subsidiaries; provided, however, that none of the following activities shall constitute a violation of Section 7.2(a)(iii): (A) entering into, extending, renewing, amending or replacing any agreement or arrangement with any existing customer, vendor, supplier, distributor, content provider or other business associate of the Seller or any of its Affiliates, provided that this exception shall not apply to any such agreement or arrangement that is primarily intended to alter, reduce or terminate (as distinguished from an agreement or arrangement that has the effect, but not the primary intent, of altering, reducing or resulting in the termination of) such business associate’s business relationship with the Company or any of its Subsidiaries; or (B) any action by the Seller or any of its Affiliates taken in the ordinary course of business in connection with obtaining or seeking to obtain from any third party vendor, supplier, distributor or content provider any products, materials, services or rights intended for use in the Seller’s (or any of its Affiliates’) businesses, provided that this exception shall not apply to any such action that is primarily intended to alter, reduce or terminate (as distinguished from an agreement or arrangement that has the effect, but not the primary intent, of altering, reducing or resulting in the termination of) such business associate’s business relationship with the Company or any of its Subsidiaries. Notwithstanding anything in Section 7.2(a), none of the following activities shall constitute a violation of Section 7.2(a): (i) extending, renewing, amending or replacing the Existing LGE-Derbez Agreement or entering into, extending, renewing, amending or replacing any other agreement or arrangement with Exxxxxx Xxxxxx, 3Pas Studios, LLC or Derbez Entertainment Inc. or any of their respective Affiliates; (ii) soliciting or hiring any Person, other than those set forth on Schedule 7.2(a)(ii), who contacts the Seller or any of its Affiliates on his or her own initiative without any direct or indirect solicitation by or encouragement from the Seller or any of its Affiliates; or (iii) making general solicitations for employment (including through the use of advertisements in the media and solicitations placed by recruiting firms or similar organizations) not specifically directed at individual prospective employees, consultants or independent contractors or soliciting or hiring any person responding to such general solicitations, other than those set forth on Schedule 7.2(a)(ii). In addition, notwithstanding anything in Section 7.2(a), none of the following shall constitute a violation of Section 7.2(a): (x) any action or inaction by the Seller or any of its Affiliates expressly permitted under any existing co-development or co-production, distribution or license agreement between the Seller or any of its Affiliates, on the one hand, and the Company or any of its Subsidiaries, on the other hand; (y) the alteration, reduction or termination by any supplier, distributor, content provider or other business associate of the Company or any of its Subsidiaries of its business relationship with the Company or any of its Subsidiaries on its own initiative or by virtue of the terms of any existing Contract as a result of the Company and its Subsidiaries ceasing to be Affiliates of the Seller or any of its Affiliates following the consummation of the Contemplated Transactions; or (z) the acquisition by the Seller or any of its Affiliates of any Person that is engaged in a Competing Business, as long as such Person derives less than twenty-five percent (25%) of its revenue and enterprise value from such Competing Business.
(b) As a material inducement to the Seller to enter into this Agreement (without such inducement the Seller would not have entered into this Agreement), during the Restricted Period, the Buyer shall not, directly or indirectly (whether by itself, through an Affiliate (including the Company or any of its Subsidiaries), in partnership or conjunction with, or as a manager, member, owner, consultant or agent of, any other Person), solicit, entice, encourage or intentionally influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee employee of the Seller or any of its Affiliates to resign or otherwise leave the employ of Purchaser the Seller or the Acquired Companies any of its Affiliates or otherwise hire, employ, engage or contract with any Transferred Employee such employee to perform services other than for the benefit of Purchaser the Seller or the Acquired Companies.
(b) any of its Affiliates. Notwithstanding anything in Section 7.5(a)(ii7.2(b), Sellers and their Affiliates none of the following activities shall not be prohibited from or restricted in any way with respect to: constitute a violation of Section 7.2(b): (i) advertising job openings soliciting or hiring any person who contacts the Buyer or any of its Affiliates on his or her own initiative without any direct or indirect solicitation by or encouragement from Buyer or any of its Affiliates; or (ii) making general solicitations for employment (including through the use of newspapers, magazines, advertisements in the Internet media and other media solicitations placed by recruiting firms or similar organizations) not specifically directed at individual Transferred Employees prospective employees, consultants or independent contractors or soliciting or hiring any person responding to such Transferred Employees as a result thereof; general solicitations.
(iic) 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 Notwithstanding anything to the date contrary set forth herein (including Section 10.8), in the event of first contact by Seller a breach of any of the provisions of Section 7.2(a) or Section 7.2(b) (the “Restrictive Covenants”):
(i) each of (A) the Buyer and its Affiliates with (including the Company) and (B) the Seller and its Affiliates, respectively, shall have the right and remedy, without regard to any other available remedy, to (x) have the Restrictive Covenants specifically enforced by any court of competent jurisdiction and (y) have issued an injunction restraining any such Transferred Employee, or whose employment has been terminated breach without posting of a bond; it being understood that any breach of any of the Restrictive Covenants by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller Party or any of its Affiliates would cause irreparable and material harm to such Party and its Affiliates, the amount of which cannot be readily determined and as to which neither such Party nor any of its Affiliates will have any adequate remedy at law or in damages;
(other than ii) it is the Acquired Companies) engages in as desire and intent of the date Parties 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 this Agreement, including 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 operations set forth on Schedule 7.5(b)(iii) operation of the Seller Disclosure ScheduleRestrictive Covenant in the particular jurisdiction in which such adjudication is made; and
(ivd) holding as a passive investment not more than five percent (5%) The Parties acknowledge and agree that the Restrictive Covenants are necessary for the protection and preservation of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in any Competing Business Activity and, following such acquisition, actively engaging in any such Competing Business Activity, so long as for value and the most recent fiscal year ended prior to the date of such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) goodwill of the total consolidated revenues businesses of such Person.
(c) Seller expressly acknowledges that each of (i) each of the restrictions contained in this Section 7.5 are reasonable in all respects (including with respect to subject matter, geographical scope Buyer and time period) and such restrictions are necessary to protect Purchaser’s interest in, and value of, the Acquired Companies’ businesses its Affiliates (including the goodwill inherent therein), Company) and (ii) the Seller is primarily responsible for the creation of such value, (iii) the transactions contemplated by this Agreement constitute good, and its Affiliates and are reasonable and valid in geographical and binding consideration for Seller’s obligations, covenants temporal scope 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 covenantall other respects.
Appears in 1 contract
Samples: Securities Purchase Agreement (Hemisphere Media Group, Inc.)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFor a period of sixty (60) months commencing on the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause not permit any of its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on (i) engage in or is engaged in, any Competing Business Activities anywhere assist others in engaging in the worldRestricted Business in the Territory except if working for the Company or the Buyer as a direct employee or independent contractor; (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, except if working for the Company or the Buyer as a direct employee or independent contractor; and
or (iiiii) intentionally interfere in any material respect with the business relationships (Awhether formed prior to or after the date of this Agreement) for between the Company and customers or suppliers of the 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 period of three (3) years following the Closing Date, solicit, entice, encourage or influencecontrolling Person of, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any a member of the Senior Management a group which controls, such Person and does not, directly or indirectly, own 5% or more of the Business to perform services other than for the benefit any class of Purchaser or the Acquired Companies or (B) for a period securities of two (2) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companiessuch Person.
(b) Notwithstanding Section 7.5(a)(ii)During the Restricted Period, Sellers Seller shall not, and their Affiliates shall not be prohibited 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 general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 5.07(b) shall prevent Seller or any of its Affiliates from or restricted in any way with respect to: hiring (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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or employee whose employment has been terminated by Purchaser, the Acquired Companies Company or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller Buyer or its Affiliates prior thereto; (iiiii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of after [180] days from the date of this Agreementtermination of employment, including any employee whose employment has been terminated by the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personemployee.
(c) During the Restricted Period, Seller expressly 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 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 (iwithout any requirement to post bond).
(e) each of Seller acknowledges that the restrictions contained in this Section 7.5 5.07 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, the legitimate interests of Buyer and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service, or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 5.07 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 1 contract
Samples: Limited Liability Company Interest Purchase Agreement (HomeSmart Holdings, Inc.)
Non-Competition; Non-Solicitation. a. Except as prohibited by law, the Participant agrees that during his employment with the Company or its Affiliates, and 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 (a) Subject to Section 7.5(bincluding indirectly through a debt, equity investment, or otherwise), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates not provide services to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent ofbe employed by, any other Person):
person or entity engaged in any business that is (i) for located in a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, region with respect to which the Participant had substantial responsibilities while employed by the Company or its 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 Competing Business Activities, advise, assist prospective business to be developed or consult withacquired that was proposed at the date of termination), or have an interest in, (B) any other Person thatbusiness 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 employment with the Company or its Affiliates, and for the two-year period thereafter, the Participant will not, directly or indirectly, undertakes, manages, participates in, carries on his own behalf or is engaged in, any Competing Business Activities anywhere in the world, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
(ii) (A) for a period on behalf of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) Notwithstanding Section 7.5(a)(ii), Sellers and their Affiliates shall not be prohibited from or restricted in any way with respect to: another (i) advertising job openings by use solicit, recruit, aid or induce any employee 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller Company or any of its Affiliates (other than to leave their employment with the Acquired Companies) engages Company or its Affiliates in as of order to accept employment with or render services to another person or entity unaffiliated with the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public Company or private) that is primarily engaged in Competing Business Activities; or (v) acquiring (in a single transaction or series of related transactions) any Person that isits Subsidiaries, or has a subsidiary, division, group, franchise hire or segment that is, engaged knowingly take any action to assist or aid any other person or entity in any Competing Business Activity and, following such acquisition, actively engaging in identifying or hiring any such Competing Business Activityemployee, so long as for the most recent fiscal year ended prior to the date of such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Person.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 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), or (ii) Seller is primarily responsible for solicit, aid, or induce any customer of the creation Company or 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 identifying or soliciting any such valuecustomer, or (iii) otherwise interfere with 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 relationship of the Company or any of its Subsidiaries with any of its employees, customers, agents, or representatives.
c. Irreparable injury will result to the transactions contemplated hereby without Company, and to its business, in the restrictions contained in this Section 7.5 and this Section 7.5 being in full force and effect and binding and enforceable covenants event of Seller. If a court of competent jurisdiction finds that breach by the time period Participant of any of the foregoing Participant’s covenants is too lengthy or and commitments under this Award, including the geographic coverage or scope 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 covenants is too broadParticipant’s unvested Units shall be immediately rescinded and the Participant will forfeit any rights he or she has with respect thereto. In the event of such a breach, upon demand by the Company, the restrictive 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 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 paragraph 14, including but not limited to the time period will be deemed to be the longest period permissible under applicable Legal Requirement and geographic restrictions, are reasonable, fair, just and enforceable by a court.
d. The Participant understands and agrees that by accepting this Award (and the geographic coverage and scope will be deemed opportunity to comprise the largest coverage and scope permissible under applicable Legal Requirements. With respect to each restrictive covenantacquire Shares hereunder), the contemplated restricted period shall be extended during provisions of this paragraph 14 are binding upon the term Participant, regardless of any breach whether Shares are ultimately issued pursuant to this Award. These provisions survive the termination of such restrictive covenantthis Award Agreement.
Appears in 1 contract
Samples: Restricted Share Unit and Performance Unit Award Agreement (Johnson Controls International PLC)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(b), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere in the world, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
(ii) (A) for For a period of three (3) years following commencing on the Closing DateDate (the “Restricted Period”), solicitParent shall not, enticeand shall not permit any of its Subsidiaries to, encourage directly or influenceindirectly (other than through Buyer or its Subsidiaries), (i) engage 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; provided, that Parent and its Subsidiaries may (A) own or acquire, directly or indirectly, solely as an investment, securities, equity interests or indebtedness of any Person engaged in the Restricted Business traded on any national securities exchange if Parent is not a controlling Person of, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any a member of the Senior Management a group which controls, such Person and does not, directly or indirectly, own 10% or more of the Business to perform services other than for the benefit any outstanding securities, equity interests or indebtedness of Purchaser or the Acquired Companies such Person, or (B) acquire any business or Person engaged in any Restricted Business if such Restricted Business accounted for a period less than 15% of two such business’ or Person’s consolidated annual revenues during the fiscal year prior to such acquisition being made (2) years following or, if earlier, the Closing Date, solicit, entice, encourage or influence, or attempt entry in to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 definitive agreement providing for the benefit making of Purchaser or the Acquired Companiessuch acquisition).
(b) Notwithstanding Section 7.5(a)(ii)During the Restricted Period, Sellers Parent shall not, and their Affiliates shall not be prohibited from permit any of its Subsidiaries to, directly or restricted in indirectly, hire for employment or engagement any way with respect to: Transferred Employee; provided that the foregoing restriction shall not apply to (i) advertising job openings by use of newspapers, magazines, the Internet and other media a general solicitation which is not directed specifically directed at individual Transferred Employees or hiring to any such Transferred Employees employees and hiring 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or employee whose employment has been terminated by PurchaserBuyer or its Subsidiaries (including after the Closing, the Acquired Companies Purchased Subsidiary), or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business after three (other than the Business3) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of months from the date of this Agreementtermination of employment, including any employee whose employment has been terminated by the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personemployee.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 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 1 contract
Samples: Purchase Agreement (American Virtual Cloud Technologies, Inc.)
Non-Competition; Non-Solicitation. 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. The Optionee agrees as follows:
(a) Subject to Section 7.5(b)Until the eighteen month anniversary of the date of termination of the Optionee’s employment or other engagement with the Company and all of its subsidiaries, as a material inducement to Purchaser to enter into this Agreementwithout the prior written consent of the Company, Seller shall the Optionee will not, and shall cause its Affiliates not toanywhere in the world, directly or indirectly (whether by itselfindirectly, through an Affiliate either as principal, manager, agent, consultant, officer, stockholder, partner, investor, sponsor, lender or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged inemployee, or in any manner ownother capacity carry on, operatebe engaged in or employed by or be a consultant to or have any financial interest in, orany Person which is in competition with the Company (as described in Section 7(b)). During such period, the Optionee agrees that, without the prior written consent of the Company (and other than on behalf of the Company), the Optionee shall not, on the Optionee’s behalf or on behalf of any Person, directly or indirectly, (i) solicit or offer employment to, or employ, any Person who is an officer, management employee or other key employee or full-time consultant of the Company or any of its subsidiaries or induce or attempt to induce or encourage others to induce or attempt to induce any such Person to (A) terminate such Person’s employment with such employer (in the case of an employee) or (B) cease providing his or her services to such entity (in the case of a consultant), (ii) solicit or attempt to solicit, or assist or encourage any Person in soliciting or attempting to solicit any customer or supplier (for the purpose of causing such supplier to cease providing goods or services to the Company) of the Company or any of its subsidiaries to or for any Person which is in competition with the Company or (iii) whether in written or oral form, make any statement that libels, slanders or disparages the Company or any of its subsidiaries, with respect to any Competing Business Activities, advise, assist of the past or consult with, present activities of the Company or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere in the world, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
(ii) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) its subsidiaries; provided, however, that this shall not prevent the Optionee from making statements about the Company or any of its subsidiaries in connection with a suit or claim brought by the Seller Disclosure Schedule (collectively, Optionee against the “Senior Management Company or any of the Business”) to resign or otherwise leave the employ of Purchaser its subsidiaries or the Acquired Companies defense of a claim made by Company or any of its subsidiaries against the Optionee or as otherwise hire, employ, engage or contract required by law in connection 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companiesproceeding.
(b) Notwithstanding For purposes of this Section 7.5(a)(ii)7, Sellers and their Affiliates a Person shall not be prohibited from or restricted deemed to be in any way competition 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 Company if 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage Person is involved in any business (other than conducted by the Business) that Seller Company or any of its Affiliates (subsidiaries on the date the Optionee’s employment or other than engagement with the Acquired Companies) engages Company or any of its subsidiaries terminates or with respect to which the Company has taken any substantial steps to engage in as during the period of the date Optionee’s employment or other engagement by the Company that the Optionee is aware of; provided, however, that nothing in this Section 7 shall be construed so as to preclude the Optionee from investing in any publicly or privately held company provided that the Optionee’s beneficial ownership or rights to ownership of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) any class of the Seller Disclosure Schedule; (iv) holding as a passive investment such company’s securities does not more than five percent (5%) exceed 2% of the outstanding voting securities of such class.
(c) The Optionee agrees that the covenants set forth in this Section 7 are reasonable covenants under the circumstances, and further agrees that if in the opinion of any company 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 (whether public as modified) to be valid and enforceable and to enforce the remainder of the covenants as so amended. The Optionee agrees that any breach of any covenant contained in this Section 7 would irreparably injure the Company. Accordingly, the Optionee agrees that the Company, in addition to pursuing any other remedies it may have in law or privatein equity, shall be entitled to a decree or order of specific performance and an injunction against the Optionee from any court having jurisdiction over the matter, restraining any further violation of this Section 7 without proof of actual damages.
(d) In the event that is primarily engaged in Competing Business Activities; or the Optionee breaches any of the material provisions of this Section 7, (v) acquiring (in a single transaction or series of related transactionsi) any Person that isexercise, payment or has a subsidiary, division, group, franchise or segment that is, engaged in any Competing Business Activity and, following such acquisition, actively engaging in any such Competing Business Activity, so long as for delivery made pursuant to this Agreement during the most recent fiscal two (2) year ended period prior to the date of such acquisition, breach shall be rescinded and the revenues derived from Company shall notify the Competing Business Activities were less than fifteen percent Optionee in writing of any such rescission within one (15%1) year of the total consolidated revenues date it acquires actual knowledge of such Person.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 7.5 are reasonable in all respects (including with respect to subject matter, geographical scope breach 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 all vested Option Shares held by the creation Optionee shall be forfeited, terminated and cancelled effective as of the day immediately preceding the date of such valuebreach. Within ten (10) days after receiving the notice of rescission from the Company, (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 Optionee shall pay to the Company the amount of any gain realized or any payment received as a result of the transactions contemplated hereby without exercise, payment or delivery pursuant to the restrictions contained Option. Such payment shall be made either in this Section 7.5 and this Section 7.5 being in full force and effect and binding and enforceable covenants cash or by returning to the Company the number of Seller. If a court of competent jurisdiction finds Shares that the time period of any of Optionee received in connection with the foregoing covenants is too lengthy rescinded exercise, payment 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 covenantdelivery.
Appears in 1 contract
Samples: Nonqualified Stock Option Agreement (Metaldyne Performance Group Inc.)
Non-Competition; Non-Solicitation. (a) Subject Each of the 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 Section 7.5(b)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 a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):follows:
(i) for For a period of four two (42) years following commencing on the Closing DateDate (the "RESTRICTED PERIOD"), undertakeno Seller shall, manage, participate in, carry on or be engaged in, in the United States of America or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thatCanada, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere (A) engage in the worldTransferred Company Business for such Seller's own account; (B) except as agreed to in writing by the Buyer and 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, own 5% or more of any class of securities of such Person; or (D) 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) (A) for a period of three (3) years following Without the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) prior written consent of the Buyer, during the Restricted Period, no Seller Disclosure Schedule 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 (collectively, the “Senior Management 1) year of the Business”) termination of such employment, except pursuant to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with a general solicitation which is not directed specifically to 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companiessuch employees.
(b) Notwithstanding If any Seller breaches, or threatens to commit a breach of, any of the provisions of Section 7.5(a)(ii)6.19, Sellers each of the Buyer and their Affiliates 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 be prohibited from in lieu of, any other rights and remedies available to any of the Buyer or restricted any Transferred Company under law or in any way with respect to: equity:
(i) advertising job openings The right and remedy to have such provision specifically enforced by use of newspapersany court having equity jurisdiction, magazines, the Internet it being acknowledged and other media not specifically directed at individual Transferred Employees or hiring agreed that any such breach or threatened breach will cause irreparable injury to each of the Buyer and each Transferred Employees as a result thereofCompany and that money damages would not provide an adequate remedy to the Buyer or any Transferred Company; and
(ii) hiring The right and remedy to require each Seller to account for and pay over to the Buyer or soliciting any Transferred Employee who has terminated employment with PurchaserCompany, as the Acquired Companies case may be, all compensation, profits, monies, accruals, increments or any Affiliate thereof, at least nine (9) months prior to other benefits derived or received by such Seller as the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities result of any company (whether public or private) that is primarily engaged in Competing Business Activities; or (v) acquiring (in transactions constituting a single transaction or series of related transactions) any Person that is, or has a subsidiary, division, group, franchise or segment that is, engaged in 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 breach of such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personprovision.
(c) Each Seller expressly acknowledges and agrees that (i) each as to it the provisions of the restrictions contained in this Section 7.5 6.19 are reasonable and valid in geographical and temporal scope and 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 Sellerother respects. If a any court of competent jurisdiction finds determines that the time period all or any part of any of this Section 6.19 is invalid or unenforceable as to one or more of the foregoing covenants 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 too lengthy unenforceable as to one or more of the geographic coverage or 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 covenants breadth of such scope or otherwise, it is too broadthe 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 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 provisions of this Section 6.19 as they relate to each restrictive covenantjurisdiction being, the contemplated restricted period shall be extended during the term of any breach of such restrictive covenantfor this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(b)Tanus, as a material inducement to Purchaser to enter into this Agreementfor himself and his Affiliates and Family Members, Seller shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere in the world, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
(ii) (A) hereby agrees for a period of three (3) years following the Closing Date, solicitand each Seller, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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) hereby agrees for a period of two (2) years following the Closing Date, not to directly or indirectly:
(i) engage or invest in, own, manage, operate, finance, control, or participate in the ownership, management operation, financing, or control of, be employed by, associated with, or in any manner connected with, lend such Seller’s name or any similar name to, lend their credit to or render services, assistance or advice to, any Competing Business anywhere in North America; provided, however, that Tanus and his Affiliates and Family Members, and each such Seller may purchase or otherwise acquire up to (but not more than) five percent of any class of equity securities (including securities convertible into or exchangeable for such equity securities) of any Competing Business (but without otherwise participating in the activities of such Competing Business) if such equity securities (including securities convertible into or exchangeable for such equity securities) are listed on any national or registered security exchange or have been registered under Section 12(g) of the Securities Exchange Act of 1934;
(ii) whether for Tanus, his Affiliates or Family Members or for such Seller’s own account or for the account of any other Person, solicit Competing Business from any Person known by any Seller to be a customer of the Company or any Subsidiary, whether or not Tanus, his Affiliates or Family Members, or such Seller had personal contact with such Person during and by reason of Tanus, his Affiliates or Family Members’ or such Seller’s employment or ownership of the Company;
(iii) whether for Tanus, his Affiliates or Family Members or for such Seller’s own account or the account of any other Person (A) solicit, entice, encourage any person who is an employee of the Company or influence, any Subsidiary (except any individual identified on Schedule 7.4(a)(iii) of the Disclosure Schedule) or in any manner induce or attempt to solicitinduce any employee of the Company or any Subsidiary (except any individual identified on Schedule 7.4(a)(iii) of the Disclosure Schedule) to terminate his employment with the Company or any such Subsidiary; or (B) interfere with the Company’s or its Subsidiaries’ relationship with any Person; or
(iv) publicly disparage the Company, enticeits Subsidiaries or any of their stockholders, encourage or influencemembers, managers, directors, officers, employees, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companiesagents.
(b) Notwithstanding The Parties hereto agree that irreparable damage may occur in the event that any of the provisions of this Section 7.5(a)(ii)7.4 was not performed in accordance with its specified terms or was otherwise breached. It is accordingly agreed that, Sellers subject to the determination of a court of competent jurisdiction, Purchaser shall be entitled to an injunction or injunctions to prevent breaches or threatened breaches of this Section 7.4 and their Affiliates shall not be prohibited from or restricted to enforce specifically the terms and provisions herein in any way with respect to: court of competent jurisdiction, this being in addition to any other remedy to which they are entitled at law or in equity (i) advertising job openings by use of newspapers, magazines, the Internet and other media not specifically directed at individual Transferred Employees or hiring without 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 requirement to the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personpost bond).
(c) Tanus and each Seller expressly acknowledges acknowledge that (i) each of the restrictions contained in this Section 7.5 7.4 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, the legitimate interests of Purchaser and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Purchaser to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, Agreement. The covenants and agreements contained in this Section 7.5 7.4 and (iv) Purchaser would each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not have entered into this Agreement 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. If, at the time of the transactions contemplated hereby without the restrictions contained in enforcement of this Section 7.5 and this Section 7.5 being in full force and effect and binding and enforceable covenants of Seller. If 7.4, a court of competent jurisdiction finds determines that the time period of any of restrictions stated herein are unreasonable under the foregoing covenants is too lengthy circumstances then existing, Tanus and each Seller agree that the maximum period, scope 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 geographical area reasonable 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 such circumstances shall be extended during substituted for the term of any breach of such restrictive covenantstated period, scope or area.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Fortune Brands Home & Security, Inc.)
Non-Competition; Non-Solicitation. The Employee acknowledges and recognizes the highly competitive nature of the businesses of the Company and its subsidiaries and controlled affiliates and accordingly agrees as follows:
1. During the period commencing on the date of the Employee’s termination of employment and ending on the last day of the Payment Period (a) Subject to Section 7.5(bthe “Restricted Period”), or such longer period as a material inducement to Purchaser to enter into described in the last sentence of Section VII of this Agreement, Seller shall the Employee will not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes(w) engage in any “Competitive Business” (defined below) for the Employee’s own account, manages(x) enter the employ of, participates or render any services to, any person engaged in any Competitive Business, (y) acquire a financial interest in, carries on or is engaged inotherwise become actively involved with, any Competing Business Activities anywhere person engaged in the worldany Competitive Business, including directly or indirectly, as a an individual, partner, shareholder, memberofficer, employeedirector, principal, agent, trustee or consultant; and
(ii) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage (z) interfere with business relationships between the Company and customers or influencesuppliers of, or attempt to solicitconsultants to, enticethe Company.
2. For purposes of this Section VI, encourage or influencea “Competitive Business” means, as of any date, including during the Restricted Period, any of individuals listed on Schedule 7.5(a)(ii)(Aperson or entity (including any joint venture, partnership, firm, corporation or limited liability company) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign that engages in or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing proposes to engage in the following activities in any geographical area in which the business (other than unit for which the Business) that Seller or any Employee works does business: the manufacture and sale of its Affiliates (other than the Acquired Companies) engages in as vinyl and composite siding.
3. For purposes of the date this Section VI and of Section VII of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of Company shall be construed to include the Seller Disclosure Schedule; (iv) holding Company and its subsidiaries and controlled affiliates.
4. Notwithstanding anything to the contrary in this Agreement, the Employee may, directly or indirectly, own, solely as a passive investment not more than five percent (5%) of the outstanding voting an investment, securities of any company (whether public or private) that is primarily person engaged in Competing Business Activities; the business of the Company which are publicly traded on a national or regional stock exchange or on the over-the-counter market if the Employee (vA) acquiring is not a controlling person of, or a member of a group which controls, such person and (B) does not, directly or indirectly, own one percent (1%) or more of any class of securities of such person.
5. During the Restricted Period, the Employee will not, directly or indirectly, without the Company’s written consent, solicit or encourage to cease to work with the Company any employee or any consultant of the Company or any person who was an employee of or consultant then under contract with the Company within the six-month period preceding such activity. In addition, during the Restricted Period, the Employee will not, without the Company’s written consent, directly or indirectly hire any person who is or who was, within the six-month period preceding such activity, an employee of the Company.
6. The Employee understands that the provisions of this Section VI.A may limit the Employee’s ability to earn a livelihood in a single transaction or series of related transactions) any Person that is, or has a subsidiary, division, group, franchise or segment that is, engaged in 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 business similar to the date of such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) business of the total consolidated revenues of such Person.
(c) Seller expressly Company, but the Employee nevertheless agrees and hereby acknowledges that (iA) each such provisions do not impose a greater restraint than is necessary to protect the goodwill or other business interests of the Company, (B) such provisions contain reasonable limitations as to time and scope of activity to be restrained, (C) such provisions are not harmful to the general public and (D) such provisions are not unduly burdensome to the Employee. In consideration of the foregoing and in light of the Employee’s education, skills and abilities, the Employee agrees that he shall not assert that, and it should not be considered that, any provisions of Section VI.A. otherwise are void, voidable or unenforceable or should be voided or held unenforceable.
7. It is expressly understood and agreed that, although the Employee and the Company consider the restrictions contained in this Section 7.5 are reasonable in all respects (including with respect VI.A to subject matterbe reasonable, geographical scope and if a judicial determination is made by a court of competent jurisdiction that the 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 or territory or any other restriction contained in this Section 7.5 and (iv) Purchaser would not have entered into VI.A or elsewhere in this Agreement or any is an unenforceable restriction against the Employee, the provisions of the transactions contemplated hereby without the restrictions contained in this Section 7.5 Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and this Section 7.5 being in full force territory and effect and binding and enforceable covenants of Sellerto such maximum extent as such court may judicially determine or indicate to be enforceable. If a Alternatively, if any 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 time period enforceability 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 covenantother restrictions contained herein.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bPPR hereby undertakes (and shall procure that the Seller and its Affiliates undertake), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere in the world, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
(ii) (A) for a period of three (3) years following from the Closing Date, solicit, entice, encourage not to engage in a Competing Business or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) Notwithstanding Section 7.5(a)(ii), Sellers and their Affiliates shall not be prohibited from or restricted use in any way with respect to: (i) advertising job openings by use of newspapersthe name “Pinault Bois et Matériaux” or “PBM” or a substantially similar name provided, magazineshowever, that nothing herein contained shall prevent or restrict 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as from carrying on any business conducted by any of them on the date of this Agreement, including the operations set forth any retail sale and distribution (distribution grand public) carried on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Person.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 7.5 are reasonable in all respects (including with respect to subject matter, geographical scope by Conforama S.A. 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 Redcats S.A. or any of the transactions contemplated Seller’s other Affiliates at the date of this Agreement. For the purposes of this Section, “Competing Business” shall mean the business of (i) import and transformation of wood and (ii) sale and distribution of wood and building materials as carried on by the Company and the Subsidiaries on the date hereof.
(b) Except as regards Xxxxxxx Xxxxxx, PPR hereby without the restrictions contained in this Section 7.5 further undertakes (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 shall procure that the time Seller and its Affiliates undertake), for a period of one (1) year from the Closing Date not to hire or attempt to hire, either directly or indirectly, management staff (cadres and cadres supérieurs) from the Company or the Subsidiaries, or incite members of such staff to leave any positions they occupy now or in the future within the Company or the Subsidiaries. For the avoidance of doubt, the Seller and its Affiliates shall not be restricted from hiring any employee of the foregoing covenants is too lengthy Company or the geographic coverage Subsidiaries who has terminated his employment with the Company or scope of the Subsidiaries without any interference of the covenants is too broad, Seller or its Affiliates or who has responded to any general recruitment advertisements of 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 covenantSeller or its Affiliates.
Appears in 1 contract
Non-Competition; Non-Solicitation. I acknowledge the highly competitive nature of the business of the Company, and accordingly, in order to protect the Company’s confidential and proprietary information, trade secrets, good will, and other legitimate business interests, agree as follows:
A. During the period commencing on the Effective Date and ending one (a1) Subject to Section 7.5(byear following the Closing (as defined in the Merger Agreement) (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates I will not to, directly or indirectly indirectly, for myself or any other person or entity, alone or through any other organization or entity, including without limitation by becoming an employee, investor (whether by itselfexcept as provided below), through an Affiliate or in partnership or conjunction with or forofficer, or as a memberagent, consultant, partner, co-venturer, owner, consultant member, director or agent ofotherwise, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or engage in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thatactivity that competes, directly or indirectly, undertakeswith any product or service manufactured, managessold or under development by the Company as of the Effective Date or the Closing (“Competitive Activity”). Notwithstanding the foregoing, participates in, carries on I will not be deemed to be engaged directly or is engaged in, indirectly in any Competing Business Activities anywhere Competitive Activity if I participate in the world, including any such business solely as a partnerpassive investor in up to one percent (1%) of the equity securities of a company or partnership.
B. During the Restricted Period, shareholderI will not directly or indirectly, member, employee, principal, agent, trustee for myself or consultant; and
any other person or entity: (iia) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage divert or influencetake away, or attempt to solicit, enticedivert or take away, encourage the business or influencepatronage of any of the clients, customers or accounts, or attempt to solicitprospective clients, entice, encourage customers or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) accounts of the Seller Disclosure Schedule (collectively, Company or its affiliates with whom the “Senior Management Company or its affiliates has or is actively negotiating a written agreement as of the Business”) to resign or otherwise leave the employ date as of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) 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 which my employment with Purchaser, the Acquired Companies or any Affiliate thereof, at least nine (9) months prior to the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller Company or any of its Affiliates affiliates terminates (other than the Acquired Companies“Separation Date”); (b) engages in as recruit, solicit or hire any person who is, or within the six (6) month period preceding the Separation Date was, an officer, director or employee of the date Company or any of this Agreement, including its affiliates or was a scientific consultant with an exclusive arrangement with the operations set forth on Schedule 7.5(b)(iii) Company or any of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) that is primarily engaged in Competing Business Activitiesits affiliates; or (vc) acquiring (in a single transaction induce or series of related transactions) attempt to induce any Person that isofficer, director, employee, consultant, agent or has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) representative of the total consolidated revenues of such Person.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 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 Company or any of its affiliates to discontinue his or her relationship with 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 Company or any of the foregoing covenants is too lengthy its affiliates or the geographic coverage to commence an employment 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 covenantother business relationship with another entity.
Appears in 1 contract
Samples: Non Disclosure, Inventions Assignment, Non Competition and Non Solicitation Agreement (Arqule Inc)
Non-Competition; Non-Solicitation. (a) Subject Each of the 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 Section 7.5(b)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 a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):follows:
(i) for For a period of four two (42) years following commencing on the Closing DateDate (the "Restricted Period"), undertakeno Seller shall, manage, participate in, carry on or be engaged in, in the United States of America or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thatCanada, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere (A) engage in the worldTransferred Company Business for such Seller's own account; (B) except as agreed to in writing by the Buyer and 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, own 5% or more of any class of securities of such Person; or (D) 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) (A) for a period of three (3) years following Without the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) prior written consent of the Buyer, during the Restricted Period, no Seller Disclosure Schedule 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 (collectively, the “Senior Management 1) year of the Business”) termination of such employment, except pursuant to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with a general solicitation which is not directed specifically to 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companiessuch employees.
(b) Notwithstanding If any Seller breaches, or threatens to commit a breach of, any of the provisions of Section 7.5(a)(ii)6.19, Sellers each of the Buyer and their Affiliates 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 be prohibited from in lieu of, any other rights and remedies available to any of the Buyer or restricted any Transferred Company under law or in any way with respect to: equity:
(i) advertising job openings The right and remedy to have such provision specifically enforced by use of newspapersany court having equity jurisdiction, magazines, the Internet it being acknowledged and other media not specifically directed at individual Transferred Employees or hiring agreed that any such breach or threatened breach will cause irreparable injury to each of the Buyer and each Transferred Employees as a result thereofCompany and that money damages would not provide an adequate remedy to the Buyer or any Transferred Company; and
(ii) hiring The right and remedy to require each Seller to account for and pay over to the Buyer or soliciting any Transferred Employee who has terminated employment with PurchaserCompany, as the Acquired Companies case may be, all compensation, profits, monies, accruals, increments or any Affiliate thereof, at least nine (9) months prior to other benefits derived or received by such Seller as the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities result of any company (whether public or private) that is primarily engaged in Competing Business Activities; or (v) acquiring (in transactions constituting a single transaction or series of related transactions) any Person that is, or has a subsidiary, division, group, franchise or segment that is, engaged in 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 breach of such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personprovision.
(c) Each Seller expressly acknowledges and agrees that (i) each as to it the provisions of the restrictions contained in this Section 7.5 6.19 are reasonable and valid in geographical and temporal scope and 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 Sellerother respects. If a any court of competent jurisdiction finds determines that the time period all or any part of any of this Section 6.19 is invalid or unenforceable as to one or more of the foregoing covenants 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 too lengthy unenforceable as to one or more of the geographic coverage or 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 covenants breadth of such scope or otherwise, it is too broadthe 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 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 provisions of this Section 6.19 as they relate to each restrictive covenantjurisdiction being, the contemplated restricted period shall be extended during the term of any breach of such restrictive covenantfor this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Non-Competition; Non-Solicitation. Seller and each Selling Stockholder (each a "Restricted Party") each hereby agree, severally and not jointly, as follows:
(a) Subject to Section 7.5(b), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for For a period of four five (45) years following commencing on the Closing DateDate (the "Restricted Period"), undertake, manage, participate in, carry on or be engaged in, or in such Restricted Party shall not and shall not permit any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thatof its Affiliates (as defined below) to, directly or indirectly, undertakes, manages, participates in, carries on (i) engage in or is engaged in, any Competing Business Activities anywhere assist others in engaging in the worldBusiness in the United States (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; and
or (iiiii) intentionally interfere in any material respect with the business relationships (Awhether formed prior to or after the date of this Agreement) for between the Buyer and customers or suppliers of the Buyer. Notwithstanding the foregoing, such Restricted Party may own, directly or indirectly, solely as an investment, securities of any business entity traded on any national securities exchange if such party is not a period of three (3) years following the Closing Date, solicit, entice, encourage or influencecontrolling person of, or attempt to solicita member of a group which controls, enticesuch business entity and does not, encourage directly or influenceindirectly, own 5% or attempt to solicitmore of any class of securities of such business entity. Further notwithstanding the foregoing, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the consulting agreement with the Seller Disclosure Schedule (collectivelyshall not be deemed to be a violation of this covenant, whether or not the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any member of the Senior Management of the Business to perform services other than are performed for the benefit of Purchaser Buyer or the Acquired Companies or (B) for a period of two (2) years following the Closing Date, solicit, entice, encourage or influence, or attempt any legal successor to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired CompaniesBuyer.
(b) Notwithstanding Section 7.5(a)(ii)During the Restricted Period, Sellers such Restricted Party shall not, 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or permit any of its Affiliates (other than the Acquired Companiesas defined below) engages in as to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) Buyer or potential clients or customers of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) Buyer for purposes of the outstanding voting securities of any company (whether public diverting their business or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived services from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such PersonBuyer.
(c) Seller expressly Such Restricted Party acknowledges that a breach or threatened breach of this Section 5.1 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 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 (iwithout any requirement to post bond).
(d) each of Such Restricted Party acknowledges that the restrictions contained in this Section 7.5 5.1 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, the legitimate interests of Buyer and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 5.1 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service, or other limitations permitted by applicable law. The covenants contained in this Section 7.5 5.1 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) For purposes of this Section 7.5 being in full force 5.1, "Affiliate," as it pertains to a Restricted Person, shall mean any other person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the Restricted Person. The term "control" (including the terms "controlled by" and effect and binding and enforceable covenants of Seller. If a court of competent jurisdiction finds that "under common control with") means the time period of any possession, directly or indirectly, of the foregoing covenants is too lengthy power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise. For the avoidance of doubt, the term "Affiliate" shall not include customers or distributors of the Business that are not controlled by Seller 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 covenantSelling Stockholders.
Appears in 1 contract
Samples: Asset Purchase Agreement (Lifeloc Technologies, Inc)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFor a period of five (5) years commencing on the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, the Shareholders and Seller shall not, and shall cause its their respective Affiliates not to, and shall direct their respective Representatives not to, directly or indirectly (whether by itselfindirectly, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four engage in or assist others in engaging in the Business in the Territory, (4ii) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, in any other Person that, that engages directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere indirectly in the worldBusiness in the Territory in any capacity, including as a partner, shareholder, member, director, manager, employee, principal, agent, advisor, trustee or consultant; and
(ii) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit(iii) cause, enticeinduce or encourage any actual or prospective client, encourage customer, supplier or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any member of the Senior Management licensor of the Business to perform services other than for (including any existing or former client or customer of Seller and any Person that becomes a client or customer of the benefit of Purchaser or Business after the Acquired Companies or (B) for a period of two (2) years following the Closing Date, solicit, entice, encourage or influenceClosing), or attempt any other Person who has a business relationship with the Business, to solicitterminate or modify any such actual or prospective relationship. Notwithstanding the foregoing, enticeany Shareholder may own, encourage directly or influenceindirectly, solely as an investment, securities of any Person traded on any national securities exchange if no Shareholder is (alone or with any other Person or group of Persons) a controlling Person of, or attempt to solicita member of a group which controls, enticesuch Person and does not, encourage directly or influenceindirectly, own one percent (1%) or more of any Transferred Employee to resign or otherwise leave the employ class of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any Transferred Employee to perform services other than for the benefit securities of Purchaser or the Acquired Companiessuch Person.
(b) Notwithstanding During the Restricted Period, neither Seller nor any Shareholder shall, and each of them shall cause their respective Affiliates not to, and shall direct their respective Representatives not to, directly or indirectly, hire or solicit for employment 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 general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 7.5(a)(ii), Sellers and 5.07(b) shall prevent Seller or any Shareholder or any of their respective 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or employee whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such PersonCompany.
(c) Seller expressly acknowledges and the Shareholders acknowledge that a breach or threatened breach of this Section 5.07 would give rise to irreparable harm to Buyer, 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 or any Shareholder of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to either of them 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 (iwithout any requirement to post bond or prove damages).
(d) each of Seller and the Shareholders acknowledge that the restrictions contained in this Section 7.5 5.07 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, the legitimate interests of Buyer and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Buyer to enter into this Agreement and to consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 5.07 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 1 contract
Samples: Asset Purchase Agreement (Kingsway Financial Services Inc)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFor a period of three (3) years commencing on the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause not permit any of its Affiliates not to, directly or indirectly (whether other than TMS Sub) that are controlled by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect Seller to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on (i) engage in or is engaged in, any Competing Business Activities anywhere assist others in engaging in the worldBusiness; (ii) have an ownership interest in any Person that engages in the Business in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
or (iiiii) (A) for a period of three (3) years following the Closing Datecause, solicitinduce or encourage any material client, enticepayor, encourage customer, supplier or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any member of the Senior Management licensor of the Business (including any existing or former client or customer of Seller), or any other Person who has a material business relationship with the Business, to perform services terminate or modify any such actual or prospective relationship. Notwithstanding the foregoing, Seller and its Affiliates (other than for the benefit TMS Sub) that are controlled by Seller may own, directly or indirectly, solely as an investment, securities of Purchaser or the Acquired Companies or (B) for any Person traded on any national securities exchange if it is not a period of two (2) years following the Closing Date, solicit, entice, encourage or influencecontrolling Person of, or attempt to solicita member of a group which controls, enticesuch Person and does not, encourage directly or influenceindirectly, own 5% or attempt to solicit, entice, encourage or influence, more of any Transferred Employee to resign or otherwise leave the employ class of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any Transferred Employee to perform services other than for the benefit securities of Purchaser or the Acquired Companiessuch Person.
(b) Notwithstanding Section 7.5(a)(ii)During the period commencing on the date hereof and ending on the last day of the Restricted Period, Sellers Seller shall not, and their Affiliates shall not be prohibited from or restricted in permit 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the BusinessTMS Sub) that are controlled by Seller to, directly or indirectly, hire or solicit any person who is offered employment by Shares Buyer pursuant to Section 5.02(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 5.04(b) shall prevent Seller or any of its Affiliates (other than the Acquired CompaniesTMS Sub) engages in as of from hiring after one (1) year from the date of this Agreementtermination of employment, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) that is primarily engaged in Competing Business Activities; or (v) acquiring (in a single transaction or series of related transactions) employee who has elected to terminate such employee’s employment with Shares Buyer for any Person that is, or has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personreason.
(c) If Seller expressly acknowledges or any of its Affiliates (other than TMS Sub) that are controlled by Seller breaches any of the provisions of this Section 5.04, the Buyers 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 the Buyers under law or in equity:
(i) each the right and remedy to have such provision specifically enforced by any court having jurisdiction, it being acknowledged and agreed that any such breach may cause irreparable injury to the Buyers and that money damages may not provide an adequate remedy to the Buyers; and
(ii) the right and remedy to recover from Seller, as applicable, all monetary damages suffered by the Buyers as the result of any acts or omissions constituting a breach of this Section 5.04.
(d) Seller acknowledges that the restrictions contained in this Section 7.5 5.04 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, the legitimate interests of the Buyers and value of, constitute a material inducement to the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) Buyers to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 5.04 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 1 contract
Samples: Share and Asset Purchase Agreement (BioTelemetry, Inc.)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFor a period of five (5) years commencing on the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, each of the Seller Parties agrees it shall not, and shall cause not permit any of its respective Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on (i) engage in or is engaged in, any Competing Business Activities anywhere assist others in engaging in the worldRestricted 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; and. Notwithstanding the foregoing, Xxxxxx, 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, own five percent (5%) or more of any class of securities of such Person. Nothing in this Agreement shall limit Xxxxxx xxxm advising clients in her capacity as 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 Business.
(iib) 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 (Ai) for a period Xxx Xxxxxx, (xi) any employee whose employment has been terminated by the Company or Buyer or (iii) after 365 days from the date of three termination of employment, any employee whose employment has been terminated by the employee.
(3c) years following During the Closing DateRestricted Period, each Seller Party agrees it shall not, and shall not permit any of its respective Affiliates to, directly or indirectly, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage any clients or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) customers of the Seller Disclosure Schedule (collectively, the “Senior Management 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, Xxxxxx, TFT, Xxxxxx or Xxxxxxxx or their respective Affiliates from soliciting any business, other than Restricted Business”) to resign , from current and future customers or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any member suppliers 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 DateCompany. Xxxxxx, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) Notwithstanding Section 7.5(a)(ii), Sellers JVK and their respective Affiliates shall not be prohibited limited 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 Purchaserbusiness, the Acquired Companies including Restricted Business, from current and future customers or any Affiliate thereof, at least nine (9) months prior to the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as suppliers of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such PersonCompany.
(cd) Each Seller expressly Party acknowledges that a breach or threatened breach of this Section 6.07 would give rise to irreparable harm to the Company and/or 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 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 (iwithout any requirement to post bond).
(e) each of Each Seller Party acknowledges that the restrictions applicable to such Seller Party contained in this Section 7.5 6.07 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, the legitimate interests of Buyer and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service, or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 6.07 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Aaon, Inc.)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFor a period of 5 years commencing on the Closing Date (the "Restricted Period"), as a material inducement to Purchaser to enter into this Agreement, Seller each of the Vendors shall not, and shall cause not permit any of its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thatAffiliates, directly or indirectly, undertakes, manages, participates in, carries on without the prior written consent of the Purchasers to: (i) engage in or is engaged in, any Competing Business Activities anywhere assist others in engaging in the worldBusiness in the Province of British Columbia (the "Restricted Jurisdiction"); (ii) have an interest in any Person whose business is competitive, directly or indirectly, with the Business, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
(ii) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing acquire any Person who engages in, or intends to engage in, the Business, or (iv) intentionally interfere in any material respect with the business relationships (other than the Business) that Seller whether formed before or any of its Affiliates (other than the Acquired Companies) engages in as of after the date of this Agreement, including ) between the operations set forth on Schedule 7.5(b)(iii) Company and customers or suppliers of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) Company. Notwithstanding the foregoing, each of the outstanding voting Vendors may own, directly or indirectly, solely as an investment, securities of any company (whether public or private) that Person traded on any stock exchange if the respective Vendor is primarily engaged in Competing Business Activities; or (v) acquiring (in not a single transaction or series of related transactions) any controlling Person that isof, or has a subsidiarymember of a group which controls, divisionsuch Person and does not, groupdirectly or indirectly, franchise own 1% or segment that is, engaged in more of 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 class of such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues securities of such Person.
(cb) Seller expressly acknowledges During the Restricted Period, each of the Vendors shall not, and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any Employee, Purchaser Employee, or Independent Contractor engaged by the Purchasers or its Affiliates, or encourage any Employee, Purchaser Employee, or Independent Contractor engaged by the Purchasers or its Affiliates to leave his or her employment or position, or hire or engage, as applicable, any Employee, Purchaser Employee, or Independent Contractor engaged by the Purchasers or its Affiliates who has left such employment or position, except pursuant to a general solicitation that is not directed specifically to any such individual; provided that nothing in this Section 5.8(b) shall prevent any of the Vendors or any of its Affiliates from soliciting, hiring or engaging, as applicable: (i) any Employee, Purchaser Employee, or Independent Contractor engaged by the Purchasers or its Affiliates whose employment or engagement has been terminated by the Company or Purchasers; or (ii) after 365 days from the date of termination of employment or engagement, any Employee, Purchaser Employee, or Independent Contractor engaged by the Purchasers or its Affiliates whose employment or engagement has been terminated by the Employee, Purchaser Employee, or Independent Contractor engaged by the Purchasers or its Affiliates, as applicable.
(c) During the Restricted Period and within the Restricted Jurisdiction, each of the Vendors 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 Company, the Purchaser or its Affiliates or potential clients or customers of the Company, the Purchaser or its Affiliates for purposes of diverting their business or services from the Company, the Purchasers or its Affiliates.
(d) Each of the Vendors acknowledges that a breach or threatened breach of this Section 5.8 would give rise to irreparable harm to the Purchasers, 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 of the Vendors of any such obligations, the Purchasers 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 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) Each of the Vendors acknowledges that the restrictions contained in this Section 7.5 5.8 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, the legitimate interests of the Purchasers and value of, constitute a material inducement to the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) Purchaser entering into this Agreement and consummating the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, Agreement. The covenants and agreements contained in this Section 7.5 5.8 and each provision hereof is 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.
(ivf) Purchaser would not The parties hereto intend that the conditions set forth in section 56.4(7) of the Tax Act have entered into been satisfied such that section 56.4(5) of the Tax Act applies to any "restrictive covenants" (as defined in section 56.4(1) of the Tax Act) granted by each of the Vendors under this Agreement with respect to the Business carried on by the Company (collectively, the "Restrictive Covenants"). Accordingly, the parties hereto acknowledge and agree that: (i) no proceeds shall be received or receivable by any of the transactions contemplated hereby without Vendors for granting the restrictions contained in this Section 7.5 and this Section 7.5 being in full force and effect and binding and enforceable covenants Restrictive Covenants for purposes of Seller. If a court of competent jurisdiction finds that the time period of any section 56.4(7)(d) of the foregoing covenants is too lengthy Tax Act; and (ii) the Restrictive Covenants are integral to this Agreement and have been granted to maintain or preserve the geographic coverage or scope of any fair market value of the covenants is too broadShares. In furtherance of the foregoing, the restrictive time period will be deemed Purchaser agrees to be co‐operate with each of the longest period permissible under applicable Legal Requirement Vendors and to execute the geographic coverage requisite tax election should a Vendor elect to take advantage of and scope will be deemed to comprise the largest coverage prepare 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 file such restrictive covenantan election.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFor a period of five (5) years commencing on the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, each Seller and each Equity Holders shall not, and shall cause its not permit any of their respective Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on (i) engage in or is engaged in, any Competing Business Activities anywhere assist others in engaging in the worldRestricted Business in the Territory; (ii) have an interest (financial or otherwise) in any Person other than Buyer or Buyer’s parent company 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; and
or (iiiii) intentionally interfere, including by disparagement, 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 the Business. Notwithstanding the foregoing, each Seller or each Equity Holder may (x) own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if such Seller or such Equity Holder (A) for is not a period of three (3) years following the Closing Date, solicit, entice, encourage or influencecontrolling Person of, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any a member of the Senior Management of the Business to perform services other than for the benefit of Purchaser or the Acquired Companies or a group which controls, such Person and (B) for a period does not, directly or indirectly, own one half percent (0.5%) or more of two any class of securities of such Person, (2y) years following provide services to Buyer and its Affiliates pursuant to the Closing DateEmployment Agreement or Closing Consulting Agreement, solicit, entice, encourage or influenceas applicable, or attempt to solicit(z) after final determination of the Purchased Equipment Value, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or sales of Excluded Equipment into the general market and not otherwise leave the employ constitute a breach of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any Transferred Employee to perform services other than for the benefit of Purchaser or the Acquired CompaniesSection 5.03(a)(iii) above.
(b) Notwithstanding Section 7.5(a)(ii)During the Restricted Period, Sellers and their Affiliates the Equity Holders shall not, and shall not be prohibited from permit any of their respective Affiliates to, directly or restricted in indirectly, hire or solicit any way with respect to: (i) advertising job openings by use employee 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller , Buyer or any of its Affiliates or encourage any such employee to leave such employment or hire any such employee who has left such employment, except (other than i) for solicitations pursuant to a general solicitation which is not directed specifically to any such employees, (ii) in the Acquired Companiescase of an employee who is not an immediate family member of any Equity Holder and who was terminated without cause (as customarily defined) engages in as of by the Surviving Employer, to the extent such solicitation and hiring is at least one hundred eighty (180) days following the date of this Agreementtermination by the Surviving Employer, including or (iii) in the operations set forth on Schedule 7.5(b)(iii) case of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities an employee who is an immediate family member of any company Equity Holder whose engagement by the Surviving Employer is terminated for any reason or no reason at all, to the extent such solicitation and hiring is at least three hundred sixty (whether public or private360) 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 has a subsidiary, division, group, franchise or segment that is, engaged in any Competing Business Activity and, days 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 such acquisitiontermination by the Surviving Employer. During the Restricted Period, Sellers and the revenues derived from the Competing Business Activities were less than fifteen percent (15%) Equity Holders 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 clients or customers of the total consolidated revenues Business or potential clients or customers of such Personthe Business for purposes of diverting their business or services from Buyer.
(c) At all times from and after the Closing Date, Sellers and the Equity Holders shall refrain from directly or indirectly making written or oral statements to any person or entity with whom Xxxxx has had or has a business or prospective business relationship, as well as the press and the community at large, by any means, including but not limited to internet postings, blog entries and social media, which may reasonably be expected to disparage or impugn the character, integrity or ethics, or damage the business, image or reputation, of Buyer or any of its Affiliates, or any of their respective directors, principals, officers, managers or employees.
(d) Each Seller expressly and each Equity Holder acknowledges that a breach or threatened breach of this Section 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 any Seller or any Equity Holder of any such obligations, Buyer will, 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 (i) without any requirement to post bond). Each Seller and each of Equity Holder acknowledges that the restrictions contained in this Section 7.5 5.03 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, the legitimate interests of Buyer and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 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 (iv) Purchaser would not have entered into this Agreement such covenant will be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service, or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 5.03 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written will not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in any of the covenants is too broad, the restrictive time period jurisdiction 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 not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 1 contract
Samples: Asset Purchase Agreement (Hudson Technologies Inc /Ny)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bDuring the 10-year period following the date hereof (the “Non-Competition Period“), as a material inducement to Purchaser to enter into this Agreementneither Seller nor Holdings shall, and Seller and Holdings shall ensure that none of its Affiliates or successors (Holdings, Seller shall not, and shall cause its their respective Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or and successors are hereinafter referred to as a member, owner, consultant or agent of, any other Person):
(ithe “Restricted Parties“) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thatshall, directly or indirectly, undertakeswhether on such Restricted Party’s behalf or in association, managesdirectly or indirectly, participates inas an employee, carries on or is engaged inofficer, any Competing Business Activities anywhere in the worlddirector, including as a manager, agent, partner, shareholderstockholder, owner, member, employeerepresentative, principalconsultant or in any representative or other capacity with any other Person (or any parent company, agent, trustee subsidiary or consultant; and
(iiaffiliate of any such Person) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract participate in a business that is competitive with any member of the Senior Management of the Business to perform services other than for as the benefit of Purchaser or Business has been conducted over the Acquired Companies or last two tax seasons (B) for a period of two (2) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companiesi.e. 2008 and 2009).
(b) Notwithstanding During the 10-year period immediately following the date hereof (the “Nonsolicitation Period“) without limiting the generality of Section 7.5(a)(ii5.3(a), Sellers neither Holdings nor Seller shall, and their Affiliates Holdings and Seller shall not be prohibited from ensure that none of the other Restricted Parties shall, directly or restricted indirectly, whether on such Restricted Party’s own behalf or in association, directly or indirectly, as an employee, officer, director, manager, agent, partner, stockholder, owner, member, representative, consultant or in any way representative or other capacity with respect to: any other Person (i) advertising job openings by use or any parent company, subsidiary or affiliate 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 Person), solicit any Transferred Employee who has terminated employment with Purchaser, customer of the Acquired Companies or any Affiliate thereof, at least nine (9) months prior to the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in Business as of the date of this Agreement, including hereof or at anytime during the operations set forth two-year period ending on Schedule 7.5(b)(iii) the date hereof or contact any such customer of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 purpose of procuring business in competition with the Business or where such contact may reasonably be expected to result in the date procuring of such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personbusiness.
(c) Holdings and Seller expressly acknowledges acknowledge and agree that (i) each the Business is conducted in various locations nationally and that, in order to protect the businesses and goodwill of the restrictions contained in this Business, the provisions of Section 7.5 are reasonable in all respects (including with respect to subject matter, geographical scope and time period5.3(a) and such restrictions 5.3(b) are not only fair and reasonable, but necessary to protect Purchaser’s interest in, and value of, the Acquired Companies’ businesses (including protection of the goodwill inherent therein), of the Business.
(iid) Seller is primarily responsible for the creation No Restricted Party shall be in violation of such value, (iiiSection 5.3(a) the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements contained or 5.3(b) solely as a result of an investment in this Section 7.5 and (iv) Purchaser would not have entered into this Agreement stock or other interest of an entity or any of its direct or indirect subsidiaries listed on a national securities exchange or quotation system or traded in the transactions contemplated hereby without over-the-counter market if the restrictions contained Restricted Party does not, directly or indirectly, hold in the aggregate more than a total of 5% of all such shares of stock or other interest issued and outstanding and does not serve as an officer, director, manager, employee, agent or representative of, or consult to, such entity.
(e) During the Nonsolicitation Period, neither Holdings nor Seller shall, whether on its own behalf or on behalf of any other Person, either directly or indirectly, solicit, induce, persuade, or entice, or endeavor to solicit, induce, persuade, or entice a Covered Employee to leave that employment or cease performing those services; provided, however, that this prohibition will not apply to solicitations of employment made by Holdings or Seller to the general public through the use of media advertisement, electronic job boards or professional search firms, in case where such solicitations are not directed to Covered Employees.
(f) Notwithstanding any other provision to the contrary, the Noncompetition Period and/or the Nonsolicitation Period, as applicable, shall be tolled (and the applicable period extended) during the continuation of any legal proceeding brought by Purchaser to enforce the Restricted Party’s covenants in Section 5.3(a) or Section 5.3(b) if it is ultimately determined that the Restricted Party was in breach of such covenants or if any temporary restraining order, injunction, judgment or settlement is entered against or agreed to by the Restricted Party by reason of such alleged violations.
(g) In the event the terms of this Section 7.5 and this Section 7.5 being in full force and effect and binding and enforceable covenants of Seller. If a 5.3 shall be determined by any court of competent jurisdiction finds that the time to be unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of its being too extensive in any of the foregoing covenants is too lengthy or the geographic coverage or scope of any of the covenants is too broadother respect, the restrictive time period it will be deemed interpreted to extend only over the maximum period of time for which it may be enforceable, over the longest period permissible under applicable Legal Requirement maximum geographical area as to which it may be enforceable, and to the geographic coverage and scope will maximum extent in all other respects as to which it may be deemed to comprise the largest coverage and scope permissible under applicable Legal Requirements. With respect to each restrictive covenantenforceable, the contemplated restricted period shall be extended during the term of any breach of all as determined by such restrictive covenantcourt in such action.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Pacific Capital Bancorp /Ca/)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(b)For a period of two (2) years commencing on the Closing Date (the “Restricted Period”) other than in respect of a Permitted Business, as a material inducement to Purchaser to enter into this Agreement, the Seller shall not, and shall cause not permit any of its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on (i) engage in or is engaged in, any Competing Business Activities anywhere assist others in engaging in the worldBusiness 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 trustee, investor, consultant or consultantotherwise; and
or (iiiii) intentionally interfere in any material respect with the Business relationships (Awhether formed prior to or after the date of this Agreement) for a period between any Company and customers or suppliers of three (3) years following such Company. Notwithstanding the Closing Dateforegoing, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectivelymay own, the “Senior Management of the Business”) directly or indirectly, solely as an investment, up to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 percent of the Closing Date, solicit, entice, encourage or influencecapital stock of any corporation required to file reports pursuant to the Securities Exchange Act of 1934, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise leave Person the employ securities of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any Transferred Employee to perform services other than for the benefit of Purchaser or the Acquired Companieswhich are listed on a recognized stock exchange.
(b) Notwithstanding Section 7.5(a)(ii)During the Restricted Period, Sellers the Seller shall not, and their Affiliates shall not be prohibited permit any of its Affiliates in the Territory to, directly or indirectly, hire or solicit any employee of any 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.
(c) 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 customers of the Company for purposes of diverting their Business from any Company regarding any of the products and services comprising the Business as conducted on the Closing Date. The foregoing prohibition shall not prevent Seller or restricted in any way with respect to: Seller Affiliate from (i) advertising job openings by use of newspaperssoliciting business from any Person who or which purchased a product or service from Seller or such Seller Affiliates, magazinesas applicable, before the Internet and other media not specifically directed at individual Transferred Employees or hiring any such Transferred Employees as a result thereof; Closing Date, (ii) hiring offering any product or soliciting service for sale on any Transferred Employee who has terminated employment with Purchaserwebsite, the Acquired Companies or any Affiliate thereof, at least nine (9) months prior to the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing mailing a catalog to engage any Person on any mailing list acquired or leased after the Closing Date from an independent third party, or (iv) mailing a catalog to any Person in response to a request from the Person for a catalog.
(d) The Seller acknowledges that a breach or threatened breach of this Section 5.17 would give rise to irreparable harm to the 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 Seller of any such obligations, the 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) The Seller acknowledges that the restrictions contained in this Section 5.17 are reasonable and necessary to protect the legitimate interests of the Buyer and constitute a material inducement to the Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.17 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 5.17 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 to the contrary in this Agreement, Section 5.17(a) and 5.17(c) does not prevent the Seller or any of its Affiliates within the Office Equipment Group or the Specialty Products Group, as applicable, from the following “Permitted Business” (i) marketing, selling or advertising any product line Seller and any such Affiliate within such product group, as applicable, is marketing, selling or advertising as of the Closing Date, including without limitation any product line sold in its Office Equipment Group (consisting of National Business Furniture and its Affiliates) such as office accessories, av equipment, janitorial and sanitary supplies, ergonomic solutions, furniture and equipment (including without limitation mats, storage, waste receptacles, wire shelving, carts, stands, stools) and including without limitation any product line in its Specialty Products Group (consisting of Xxxxxx, Central Restaurants and Xxxxxx Xxxxxx Associates and their Affiliates) such as point of sale and display lines, apparel, equipment (including wooden and stainless tables), customer convenience (including crowd control, first aid security, and loss prevention items), maintenance and back room supplies (including break room supplies, janitorial and sanitary supplies, storage materials and racks, floor maintenance, hoses, carts, racks, shelving, waste containers, mats), furniture (stacking chairs and tables), and food service, grocery and restaurant supply and restaurant equipment product lines; or, (ii) marketing, selling or advertising the product or service of any business (other than the Business) that Seller or any of its Affiliates (other acquires after the date hereof, provided that less than the Acquired Companies) engages in as 10% of the date of this Agreementacquired business’ product line competes with the Business and provided that the product or service was marketed, including advertised or sold by the operations set forth on Schedule 7.5(b)(iii) acquired business at the time of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) that is primarily engaged in Competing Business Activitiesacquisition; or (v) acquiring (in a single transaction or series of related transactions) any Person that is, or has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Person.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 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) marketing, selling or advertising any product that does not compete with 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 covenantBusiness.
Appears in 1 contract
Samples: Purchase Agreement (Systemax Inc)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFor a period of two years commencing on the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, Seller Xxxxx Xxxxxxx (the “Restricted Founder”) shall not, and shall cause its not permit any of their Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
indirectly: (i) for engage in or assist others in engaging in a period of four business that directly competes with the Business in the Territory; (4ii) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, in any other Person that, that engages directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing indirectly in a business that directly competes with the Business Activities anywhere in the worldTerritory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; andor (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:
(i) the Restricted Founder may own, directly or indirectly, solely as an investment, securities of any Person traded on any stock exchange if such Restricted Founder 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;
(ii) (Athis Section 6.8(a) shall not restrict the Restricted Founder from acting as an employee, agent, representative, designer, consultant, advisor, manager, licensor, sublicensor, licensee or sublicensee of, for or to any business unit of any Person where such business unit does not carry on a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract business that directly competes with any member of the Senior Management of the Business to perform services other than for in the benefit Territory; and
(iii) nothing contained herein shall restrict the Restricted Founder from any general advertisements, posts or similar solicitations or activities not on behalf of Purchaser or any business that directly competes with the Acquired Companies or (B) for a period of two (2) years following Business in the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired CompaniesTerritory.
(b) Notwithstanding Section 7.5(a)(ii)During the Restricted Period, Sellers Restricted Founder shall not, and their Affiliates shall not be prohibited permit any of his Affiliates to, directly or indirectly, hire or solicit any Employee or encourage any Employee to leave his or her employment or hire any Employee who has left such employment, except pursuant to a general advertisements, posts or similar solicitations or activities that is not directed specifically to any such Employees; provided that nothing in this Section 6.8(b) shall prevent Restricted Founder or any of his Affiliates from or restricted in any way with respect tohiring: (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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by the Corporation or Purchaser, the Acquired Companies ; or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iiiii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of after 180 days from the date of this Agreementtermination of employment, including any Employee whose employment has been terminated by the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such PersonEmployee.
(c) Seller expressly During the Restricted Period, the Restricted Founder shall not, and shall not permit any of his 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; provided that nothing contained herein shall restrict the Restricted Founder from any general advertisements, posts or similar solicitations or activities not on behalf of any business that directly competes with the Business in the Territory.
(d) The Restricted Founder acknowledges that a breach or threatened breach of this Section 6.8 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 Restricted Founder 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 (iwithout any requirement to post a bond or other security).
(e) each of The Restricted Founder acknowledge that the restrictions contained in this Section 7.5 6.8 are reasonable in all respects (including with respect to subject matter, geographical scope and time period) and such restrictions are necessary to protect the legitimate interests of Purchaser and constitute a material inducement to Purchaser’s interest in, entering into this Agreement and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) consummating the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, Agreement. The covenants and agreements contained in this Section 7.5 6.8 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) The Parties hereto intend that the conditions set forth in section 56.4(7) of the Tax Act have been satisfied such that section 56.4(5) of the Tax Act applies to any “restrictive covenants” (as defined in section 56.4(1) of the Tax Act) granted by Restricted Founder under this Agreement with respect to the Business carried on by the Corporation (collectively, the “Restrictive Covenants”). Accordingly, the Parties hereto acknowledge and agree that: (i) no proceeds shall be received or receivable by the Restricted Founder for granting the Restrictive Covenants for purposes of section 56.4(7)(d) of the Tax Act; and (ivii) Purchaser would not have entered into the Restrictive Covenants are integral to this Agreement and have been granted to maintain or any preserve the fair market value 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 covenantShares.
Appears in 1 contract
Samples: Share Purchase Agreement (Inpixon)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(b), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period Executive acknowledges and recognizes the highly competitive nature of the Company’s business and that access to the Company’s confidential records and proprietary information renders him special and unique within the Company’s industry. In consideration of the payment by the Company to Executive of amounts that may hereafter be paid to Executive pursuant to this Agreement (including, without limitation, pursuant to Sections 3 and 5 hereof) and other obligations undertaken by the Company hereunder, Executive agrees that during (i) his employment with the Company and (ii) twenty-four months thereafter (4) years following the Closing Date“Covered Time”), undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thatExecutive shall not, directly or indirectly, undertakesengage (as owner, managesinvestor, participates inpartner, carries on stockholder, employer, employee, consultant, advisor, director or is engaged in, otherwise) in any Competing Business Activities Business, provided that the provisions of this Section 6(b) will not be deemed breached merely because Executive owns less than 1% of the outstanding common stock of a publicly-traded company. For purposes of this Agreement, “Competing Business” shall mean (i) any business in which the Company or its affiliates are currently engaged anywhere in the world, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; andand (ii) any other business in which the Company engages in anywhere in the world during the Term.
(ii) In further consideration of the payment by the Company to Executive of amounts that may hereafter be paid to Executive pursuant to this Agreement (Aincluding, without limitation, pursuant to Sections 3 and 5 hereof) for a period of three and other obligations undertaken by the Company hereunder, Executive agrees that during his employment and the Covered Time, he shall not, directly or indirectly, (3i) years following the Closing Date, solicit, entice, encourage or influenceattempt to solicit or encourage any of the employees, agents, consultants or representatives of the Company or any of its affiliates to terminate his, her, or attempt to solicit, entice, encourage its relationship with the Company or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) 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 thereofaffiliate; (ii) hiring solicit, encourage or soliciting attempt to solicit or encourage any Transferred Employee who has terminated employment with Purchaserof the employees, agents, consultants or representatives of the Acquired Companies Company or any Affiliate thereofof its affiliates to become employees, at least nine (9) months prior to the date agents, representatives or consultants of first contact by Seller any other person or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior theretoentity; (iii) continuing solicit or attempt to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Person.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 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.solicit any
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) Subject In order to Section 7.5(bprotect the Confidential Information and the significant goodwill of the Company and its affiliates with which Xxxx is, and will continue to be, associated, Xxxx expressly agrees and promises that during the period beginning on the Separation Date and ending on the second anniversary of the termination of the Consulting Period (the “Prohibited Period”), as a material inducement to Purchaser to enter into this Agreement, Seller shall Xxxx will not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakesfor himself or in conjunction with any other person or entity of whatever nature:
(i) Other than on behalf of the Company or any of its affiliates, managesXxxx shall not own, participates inmanage, carries on advise, encourage, support, finance, operate, join, control or is engaged in, any Competing Business Activities anywhere participate in the worldownership, including management, operation or control of, or be connected in any manner with any business which is in the Death Care Business (whether as a principal, funeral director, managing partner, shareholderagent, membertrustee, employee, principal, agent, trustee consultant or consultantotherwise) (i) as part of any of the companies or entities listed on Exhibit C hereto; andor (ii) anywhere within a 25-mile radius of any business owned or operated by the Company or its affiliates (the “Territory”);
(ii) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influenceAppropriate any Business Opportunity of, or attempt relating to, the Company or its affiliates in the Territory;
(iii) Solicit, canvass, approach, entice or induce any customer or supplier of the Company or any of its affiliates to solicitcease or lessen such customer's or supplier's business with the Company or any of its affiliates; or
(iv) Solicit, enticecanvass, encourage approach, entice or influenceinduce any employee of, or attempt to solicitconsultant to, entice, encourage the Company or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) its affiliates to terminate or lessen his, her or its relationship with the Company or any of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companiesits affiliates.
(b) Notwithstanding the foregoing provisions of this Section 7.5(a)(ii)8, Sellers and their Affiliates shall not be prohibited from Xxxx may own or restricted hold any passive, beneficial interest in up to one percent (1%) of the voting securities in any way with respect to: (i) advertising job openings by use of newspaperscorporation, magazinespartnership or other business entity that engages in the Death Care Business, in whole or in part, within 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereofTerritory, so long as there was no solicitation prohibited hereunder by Seller Xxxx does not have the power (directly or its Affiliates prior thereto; (iiiindirectly) continuing to engage in any business (other than the Business) that Seller control or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in any Competing Business Activity and, following direct 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personentity.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 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 ofAs used herein, the Acquired Companies’ businesses (including following terms shall have 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.following meanings:
Appears in 1 contract
Samples: Separation and Consulting Agreement (Carriage Services Inc)
Non-Competition; Non-Solicitation. The Executive agrees that if the Executive’s employment is terminated by the Company for Cause or Executive terminates such employment without Good Reason, that for a one (1) year period following the termination date:
(a) Subject to The Executive shall not engage in any business which is competitive with the business of the Company or any of its subsidiaries as of the termination date. For the purposes of this Section 7.5(b)7, a 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, in whole or in part, within a material inducement to Purchaser to enter into one-hundred (100) mile radius of the Company’s principal executive headquarters as of the date of such termination. For purposes of this Agreement, Seller the executive shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or be deemed to “engage in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
business” if he: (i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thatparticipates, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere in the world, including such business as a partnerdirector, shareholderofficer, memberstockholder, employee, principalsalesman, agent, trustee partner or consultant; and
(ii) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) 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 thereofproprietor; (ii) hiring acts as a paid consultant, representative or soliciting any Transferred Employee who has terminated employment with Purchaser, the Acquired Companies or any Affiliate thereof, at least nine (9) months prior advisor to the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior theretobusiness; (iii) continuing participates in such business as an investor (whether through loans, contributions to engage 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 business (other than entity that is competitive with the Business) that Seller Company or any of its Affiliates (other than subsidiaries, provided that the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment Executive may not more than beneficially own five percent (5%) of the outstanding voting securities or more of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 class of such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personsecurities.
(cb) Seller expressly acknowledges that The Executive will not directly, or indirectly through another person or entity, (i) each solicit any employee of the restrictions contained Company or its subsidiaries to leave the employ of the Company or its subsidiaries, or in this Section 7.5 are reasonable in all respects (including any way interfere with respect to subject matterthe relationship between the Company or its subsidiaries, geographical scope and time period) and such restrictions are necessary to protect Purchaser’s interest inon the one hand, and value ofany employee thereof, on the Acquired Companies’ businesses (including the goodwill inherent therein)other hand, (ii) Seller is primarily responsible for hire any person who was an employee of the creation of Company or its subsidiaries until one year after such value, individual’s employment relationship with the Company or its subsidiaries has been terminated or (iii) the transactions contemplated by this Agreement constitute goodinduce or attempt to induce any customer, 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 supplier or any other business relation of the transactions contemplated hereby without Company or its subsidiaries to cease doing business with the restrictions contained Company or its subsidiaries, or 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 any way interfere with the time period of relationship between any of such customer, supplier or business relation, on the foregoing covenants is too lengthy or the geographic coverage or scope of any of the covenants is too broadone hand, 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 Company or its subsidiaries, on 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 covenantother hand.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFor a period of three years commencing on the date of this Agreement (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, Seller the Sellers shall not, and shall cause its Affiliates not permit the Persons listed in Section 6.02 of the Disclosure Schedules to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere in the world, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
(ii) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) 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, engage in or assist others in engaging in the Internet and other media not specifically directed at individual Transferred Employees or hiring any such Transferred Employees as a result thereofBusiness; (ii) hiring take any action that is designed, intended or soliciting reasonably likely to have the effect of discouraging any Transferred Employee who has terminated employment customer, supplier, vendor, licensor, lessor, agent, employee, consultant and other Person under contract or otherwise associated or doing business with Purchaser, the Acquired Companies Business or the Buyers and any Affiliate thereof, at least nine (9) months 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 first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior theretothis Agreement; (iii) continuing to engage in cause, induce or encourage any business actual or prospective client, customer, supplier or licensor of the Business (other than including any existing or former client or customer of any Seller and any Person that becomes a client or customer of the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of Business after the date of this Agreement), including or any other Person who has a business relationship with the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure ScheduleBusiness, to terminate or modify any such actual or prospective relationship; or (iv) holding as a passive investment not more own (excluding the ownership of less than five percent (5%) of the outstanding voting securities of any company (whether public Person traded on any national securities exchange if such ownership does not coincide with any board of directors or private) that is primarily engaged in Competing Business Activities; or (v) acquiring (in a single transaction or series of related transactions) any Person that ismanagement position with, or has a subsidiaryany other relationship affecting the management, divisioncontrol or operation or management of, groupsuch Person), franchise manage, control or segment participate in the ownership, management or control of any business, or engage in developing, selling, manufacturing, distributing or marketing any product or service, that iswould be in competition with or engages, engaged 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 Competing 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 Activity and, following such acquisition, actively engaging in during the Restricted Period to leave the employment of the Buyers or any such Competing Business ActivityAffiliate for employment with any Seller or any of its respective Affiliates or Related Parties, so long as for or violate the most recent fiscal year ended terms of their employment contracts, or any 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 Buyers or any of their respective Affiliates who was employed by the Buyers or any of their respective Affiliates within the twelve months prior to the date earlier of (x) the offer of employment to such individual or (y) the commencement of such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of individual’s employment with such PersonSeller or applicable Affiliate.
(c) The Sellers acknowledge that a breach or threatened breach of this Section 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 expressly 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 (i) each of the restrictions contained in this Section 7.5 6.02 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, the legitimate interests of the Buyers and value of, constitute a material inducement to the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) Buyers to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 6.02 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 1 contract
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) Subject to Section 7.5(b), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a For the period of four (4) years following commencing on the Closing DateDate and expiring on the fifth (5th) anniversary thereof, undertakeexcept as permitted in this Section 5.16, manageneither Sellers nor any of their respective Affiliates (collectively, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thatthe “Restricted Parties”) shall, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere engage in the worldbusiness of (i) owning, leasing or operating convenience stores (including as a partnerbut not limited to motor fuels, shareholderfood, member, employee, principal, agent, trustee beverage and merchandise sales) or consultant; and
(ii) owning or operating a wholesale fuel distribution business (collectively, “Restricted Activities”) within (A) for a period the States of three California and Wyoming and (3B) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any ten (10) mile radius around the location of individuals listed on Schedule 7.5(a)(ii)(A) each parcel of the Seller Disclosure Schedule Real Property (collectively, the “Senior Management of the BusinessRestricted 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 resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire(as an employee, employdirector, engage 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 Dateofficer, solicitmember, enticeprincipal, encourage or influencelicensor, trustee, broker, agent, stockholder, partner, or attempt in any other capacity), operate, assist, represent or advise any Person that engages in or plans to solicit, entice, encourage engage in any Restricted Activity in the Restricted Area with respect to such Restricted Activity or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companiesengagement plans.
(b) Notwithstanding Section 7.5(a)(ii)For the period commencing on the Closing Date and expiring on the third (3rd) anniversary thereof, Sellers and their Affiliates shall not be prohibited from none of the Restricted Parties shall, without the prior written consent of Buyers, directly or restricted in any way with respect to: indirectly, (i) advertising job openings solicit, encourage, cause, induce, solicit, request or advise, any employee, independent contractor, commissioned marketer or other operator or consultant of any of Buyers or their respective Affiliates (including Transferring Employees) to leave the employment or engagement of any of Buyers or their respective Affiliates (known as such by use any of newspapersthe Restricted Parties) within the Restricted Area or (ii) hire, magazinesemploy or otherwise engage any former employee, independent contractor, commissioned marketer or other operator or consultant of any of Buyers or their respective Affiliates (known as such by any of the Internet 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 clauses (i) and other (ii) are not intended to preclude general solicitations in newspapers or similar mass media not specifically directed at individual Transferred targeted towards Transferring Employees or hiring any such Transferred Employees as a result thereof; other employees, independent contractors, commissioned marketers or other operators or consultants of Buyers or their respective Affiliates.
(iic) hiring Notwithstanding the foregoing, or soliciting any Transferred Employee who has terminated employment with Purchaseranything else contained in this Agreement to the contrary, the Acquired Companies or any Affiliate thereof, at least nine (9restrictions in Section 5.16(a) months prior shall not apply to the date of first contact following:
(i) any investment by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage a Restricted Party in any business (other Person that is traded on a national securities exchange if the Restricted Parties collectively hold less than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five two percent (52%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Person.;
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 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 current or future business activities of such valueCrossAmerica Partners, L.P.;
(iii) the transactions contemplated continued operation of the Station Properties by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements contained in this Section 7.5 and Sellers prior to the applicable CIC Conversion Date; and
(iv) Purchaser would not have entered into this Agreement the current or any future business activities of the transactions contemplated hereby without Affiliates of Sellers at any Rejected Properties, but only to the restrictions contained in extent such future activities constitute Ongoing Operations. For purposes of this Section 7.5 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 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 address for such location as of the foregoing covenants is too lengthy or Effective Date and (B) consistent with the geographic coverage or scope of any business operations being conducted at such location as 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 covenantEffective Date.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) Subject Seller acknowledges the 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 Section 7.5(bSeller for its Shares, for a period of five (5) years commencing on the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreementeach of the Shareholder Parties, Seller 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 its not permit any of his Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakeswhether acting alone or as a partner, managesshareholder, participates inmember joint venture, carries on equity or is engaged insecurity 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 Competing Business Activities anywhere 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 worldRestricted 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 trustee, consultant, independent contractor or consultantlender; and
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, own 1% or more of any class of securities of such Person. 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 Disclosure Schedules and to the extent provided to and at the request of a Group Company.
(Ab) 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 another, solicit for employment any 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 three (3whether as an employee, consultant, volunteer or otherwise) years following any such employee, contractor, or consultant so solicited or encouraged, except pursuant to a general solicitation that is not directed specifically to any such employees, contractors, or consultants; provided, however, that nothing in this Section 6.02(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, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 has been within two (2) years following 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, solicitor has been within two (2) years prior to that time, enticeactively solicited by any Group Company to become a client or customer of any Group Company, encourage with the intent of diverting their business or influenceservices from such Group Company, including by requesting, advising or inducing such Person to withdraw, curtail or cancel, or attempt to solicitengage in other activity that could adversely affect, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract relationship such Person has with any Transferred Employee to perform services other than for the benefit of Purchaser or the Acquired Companiessuch Group Company.
(bd) Notwithstanding Section 7.5(a)(ii), Sellers The Non-Compete Parties acknowledge and their Affiliates shall not be prohibited from or restricted in any way with respect to: agree (i) advertising job openings by use of newspapersthat the provisions of, magazinesand Seller’s obligations under, the Internet Section 6.01 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Person.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 7.5 6.02 are reasonable in all respects (including with respect to subject matter, geographical scope and time period) necessary for the protection of the Buyer and such restrictions are necessary to protect Purchaser’s interest inits legitimate business interests, and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute goodAgreement, valid and binding consideration for Seller’s obligations, covenants and agreements contained (ii) that any of the Non-Compete Parties’ breach or threatened breach of any provision or obligation in this Section 7.5 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 (iviii) Purchaser would not have entered into this Agreement or 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 the transactions contemplated hereby without the restrictions contained in this Section 7.5 such breach, equitable relief, including a temporary restraining order, an injunction, specific performance and this Section 7.5 being in full force and effect and binding and enforceable covenants of Seller. If 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 finds that 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 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 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 that such restrictive covenantviolation began until such violation permanently ceases.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(b), as a material As an inducement to Purchaser to enter into execute and deliver this Agreement, Seller shall notAgreement and to consummate the transactions contemplated hereby and to preserve the goodwill associated with the Business, and shall cause its Affiliates not toexcept as may be specifically authorized in writing by Purchaser expressly referencing this Section 6.5, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere in the world, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
(ii) (A) for a period of three (3) years following after the Closing Date, soliciteach of Sellers, enticeXxxxxxxx X. Xxxxxxxxx, encourage Xxxxxxx X. Xxxxxx, Xxxxxx Xxxxxxxxx, Xxxxx Xxxxx, AFIC and AFIC II shall not, and shall cause his or influenceits Affiliates not to, directly or indirectly, alone or in association with another Person:
(i) engage in, continue in, carry on, or attempt to solicitcontrol, enticeoperate, encourage or influencemanage, or attempt to solicithave any ownership or financial interest (whether as proprietor, enticepartner, encourage member, stockholder, lender, referral source, consultant or influenceotherwise) 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 of any such Competitor, soliciting clients or otherwise serving as an intermediary for any such Competitor or loaning money or rendering any other form of financial assistance to any such Competitor;
(iii) other than with respect to the individuals listed on Schedule 7.5(a)(ii)(ASection 6.5(a)(iii) of the Seller Disclosure Schedule (collectivelyfor the periods set forth therein, the “Senior Management solicit, induce or otherwise offer employment or 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 of the Business”) to resign foregoing, unless such Person has been separated from his or otherwise leave the employ her employment or other relationship with Purchaser and each of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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) its Affiliates for a period of two twelve (212) years following consecutive months (it being understood that this Section 6.5(a)(iii) shall not prohibit the Closing Dateparties bound by this Section 6.5(a)(iii) from engaging professional services firms (e.g., solicitlaw firms, entice, encourage or influence, or attempt audit firms and information technology consulting firms) that may in the past have been engaged by the Sellers); or
(iv) engage in any practice the purpose of which is to solicit, entice, encourage or influence, or attempt evade the provisions of this covenant not to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companiescompete.
(b) Notwithstanding the foregoing, Section 7.5(a)(ii), Sellers and their Affiliates 6.5(a) shall not be prohibited from or restricted in any way with respect toprohibit: (i) advertising job openings by use the ownership 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five one percent (51%) of the outstanding voting securities of any company (whether public corporation or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Person.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 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.other entity
Appears in 1 contract
Samples: Asset Purchase Agreement
Non-Competition; Non-Solicitation. (a1) Subject to Section 7.5(bFrom the Effective Date until the date that is five (5) years after the Closing Date (the “Non-competition Period”), as a material inducement except with respect to Purchaser to enter into this Agreementany of the following companies, Seller shall not, and shall cause its Affiliates not tono Existing Shareholder shall, directly or indirectly in any manner (whether including by itselfowning any equity interest, contract or through an its Affiliate or the Related Parties or other methods equivalent thereto), engage in partnership any business the same as, similar to or conjunction competing with that of the Company or for, or as a member, owner, consultant or agent of, any other Person):action to that effect throughout the world:
(i) for 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 period of four (4) years following written proposal to the Closing Date, undertake, manageNew Shareholder so that the New Shareholder may have the opportunity to jointly perform, participate in, carry on or be engaged incooperate, or affiliate in any other manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere in such competing business activities. After the world, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
(ii) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectivelyproposal, the “Senior Management of Existing Shareholders and the Business”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) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) Notwithstanding Section 7.5(a)(ii), Sellers and their Affiliates shall not be prohibited month 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 the date of first contact by Seller the proposal, the Existing Shareholders may engage in the prohibited business activities or its Affiliates with such Transferred Employeeenter into agreements, negotiations, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate commitments with third parties regarding thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Person.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 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 1 contract
Non-Competition; Non-Solicitation. (a) Subject to Except as set forth in Section 7.5(b6.03(e) below, for a period of 5 years commencing on the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, Seller and each Partner shall not, and shall cause its not permit any of their respective Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on (i) engage in or is engaged in, any Competing Business Activities anywhere assist others in engaging in the worldRestricted 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; and
or (iiiii) (A) for a period of three (3) years following the Closing Datecause, solicitinduce or encourage any actual or prospective client, enticecustomer, encourage supplier or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any member of the Senior Management licensor of the Business to perform services other than for (including any existing or former client or customer of Seller and any Person that becomes a client or customer of the benefit of Purchaser or Business after the Acquired Companies or (B) for a period of two (2) years following the Closing Date, solicit, entice, encourage or influenceClosing), or attempt any other Person who has a material business relationship with the Business, to solicitterminate or modify any such actual or prospective relationship. Notwithstanding the foregoing, enticeSeller and each Partner may own, encourage directly or influenceindirectly, solely as an investment, securities of any Person traded on any national securities exchange if Seller or any such Partner is not a controlling Person of, or attempt to solicita member of a group which controls, enticesuch Person and does not, encourage directly or influenceindirectly, own 5% or more of any Transferred Employee to resign or otherwise leave the employ class of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any Transferred Employee to perform services other than for the benefit securities of Purchaser or the Acquired Companiessuch Person.
(b) Notwithstanding Section 7.5(a)(ii)During the Restricted Period, Sellers Seller and their Affiliates each Partner shall not, and shall not be prohibited from permit any of their respective Affiliates to, directly or restricted in any way with respect to: indirectly, (i) advertising job openings hire or solicit any person who is offered employment by use of newspapers, magazines, Buyer pursuant to Section 6.01(a) or is or was employed in the Internet and other media not specifically directed at individual Transferred Employees Business during the Restricted Period or hiring any such Transferred Employees as a result thereof; (ii) hiring encourage any such employee to leave such employment or soliciting hire any Transferred Employee such employee who has terminated employment with Purchaserleft such employment, the Acquired Companies except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 6.03(b) shall prevent Seller or any Affiliate thereof, at least nine Partner or any of their respective Affiliates from hiring (9x) months prior to the date of first contact by Seller or its Affiliates with such Transferred Employee, or any employee whose employment has been terminated by Purchaser, the Acquired Companies Buyer or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iiiy) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of after 180 days from the date of this Agreementtermination of employment, including any employee whose employment has been terminated by the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personemployee.
(c) If Seller expressly acknowledges that or any Partner breaches, or threatens to commit a breach of, any of the provisions of this Section 6.03, 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) each 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 Seller or such Partner, as applicable, all monetary damages suffered by Buyer as the result of any acts or omissions constituting a breach of this Section 6.03.
(d) Each of Seller and the Partners acknowledges that the restrictions contained in this Section 7.5 6.03 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, the legitimate interests of Buyer and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 6.03 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 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.
(ive) Purchaser would not have entered into this Agreement or any of the transactions contemplated hereby without With respect to each Partner, the restrictions contained in this Section 7.5 6.03 shall be governed by the laws of the State of Texas, without giving effect to the principles of choice of law thereof. Each Partner and Buyer and ISG consents to xxx and be sued exclusively in the state and federal courts located in the State of Texas and shall not attempt the removal or change of venue of any action arising from or relating to the restrictions contained in this Section 7.5 being 6.03 to the state or federal courts of another jurisdiction. In the event the restrictions, terms, conditions and other provisions of Sections 7(a)(i) and 7(a)(ii) set forth in full force and effect and binding and enforceable covenants the employment agreement of Seller. If a court Partner terminate in accordance with the proviso to Section 15 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 broadsuch employment agreement, the restrictive time period will be deemed to be the longest period permissible under applicable Legal Requirement restrictions, terms, conditions and the geographic coverage provisions contained in Sections 6.07(a)(i) 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 6.07(a)(ii) of this Agreement shall be extended during the term of any breach of also terminate for such restrictive covenantPartner.
Appears in 1 contract
Samples: Asset Purchase Agreement (Information Services Group Inc.)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFor a period of five (5) years commencing on the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause not permit any of its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on (i) engage in or is engaged in, any Competing Business Activities anywhere assist others in engaging in the worldRestricted 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, equity holder, member, manager, employee, principal, agent, trustee or consultant; and
or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between Company or Sub, on the one hand, and customers or suppliers of Company or Sub, on the other hand, with respect to the Restricted Business in the Territory. Notwithstanding the foregoing, (i) Seller may own, directly or indirectly, solely as a financial investor, securities of any Person that would otherwise be prohibited by the preceding sentence, provided Seller neither, directly or indirectly, owns 10% or more of any class of securities of such Person, nor is a controlling Person of, or a member of a group which controls, such Person; and (ii) any non-employee board members of Seller, other than CSL Capital Management, LLC or its controlled Affiliates, may hold positions on boards of other companies that engage in the Restricted Business; and (Aiii) for a period of three (3) years following Seller and its controlled Affiliates shall be able to continue to invest in companies that are not primarily in the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) Restricted Business as of the date of such investment nor have the intention as of such date to enter into business competitive with Company; provided, however, that during the Restricted Period Seller Disclosure Schedule (collectively, and its Affiliates will not direct or encourage such companies to enter into the “Senior Management of Restricted Business in the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired CompaniesTerritory.
(b) Notwithstanding Section 7.5(a)(ii)During the Restricted Period, Sellers Seller shall not, and their Affiliates shall not be prohibited permit any of its controlled Affiliates to, directly or indirectly, hire or solicit any employee of Company or Sub, 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 6.7(b) shall prevent Seller or any of its Affiliates from or restricted in any way with respect to: hiring (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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or employee whose employment has been terminated by PurchaserCompany, the Acquired Companies Sub, or any Affiliate thereofBuyer, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iiiii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of after one year from the date of this Agreementtermination of employment, including any employee whose employment has been terminated by the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personemployee.
(c) During the Restricted Period, Seller expressly 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 Company or Sub, or potential clients or customers of Company or Sub, for purposes of diverting their business or services from Company or Sub.
(d) Seller acknowledges that a breach or threatened breach of this Section 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 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 (iwithout any requirement to post bond).
(e) each of Seller acknowledges that the restrictions contained in this Section 7.5 6.7 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, the legitimate interests of Buyer and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service, or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 6.7 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Innospec Inc.)
Non-Competition; Non-Solicitation. (a) Subject The Company Group shall provide Employee access to Section 7.5(b)trade secrets, as defined in C.R.S. § 7-74-101, et seq., for use during the Employment Period and the Additional Employment Period, and Employee acknowledges and agrees that the Company Group will be entrusting Employee, based on Employee’s unique and special capacity as a material inducement senior executive, with trade secrets, and in consideration of the Company providing Employee with access to Purchaser such trade secrets and as an express incentive for the Company to enter into this AgreementAgreement and employ Employee, Seller Employee has voluntarily agreed to the covenants set forth in this Section 10. Employee agrees and acknowledges that the limitations and restrictions set forth herein, including geographical and temporal restrictions on certain competitive activities, are reasonable in all respects, will not cause Employee undue hardship, and are material and substantial parts of this Agreement intended and necessary to protect the Company Group’s trade secrets and legitimate business interests.
(b) During the Prohibited Period, Employee shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period without the prior written approval of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thatBoard, directly or indirectly, undertakes, manages, participates in, carries for Employee or on behalf of or is engaged in, in conjunction with any Competing Business Activities anywhere in the world, including as a partner, shareholder, member, employee, principal, agent, trustee other person or consultant; andentity of any nature:
(iii) (A) for a period of three (3) years following engage in or participate within the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract Market Area in competition with any member of the Senior Management Company Group in any aspect of the Business to perform services other than for by directly or indirectly (A) owning, managing, operating or being an officer or director of any business that competes with any member of the benefit of Purchaser or Company Group in the Acquired Companies Market Area, or (B) for a period of two (2) years following the Closing Datejoining, solicit, entice, encourage becoming an employee or influenceconsultant of, or attempt to solicitotherwise being affiliated with, entice, encourage any person or influenceentity engaged in, or attempt planning to solicitengage in, entice, encourage or influence, any Transferred Employee to resign or otherwise leave the employ of Purchaser or Business in the Acquired Companies or otherwise hire, employ, engage or contract Market Area in competition with any Transferred Employee to perform services other than for member of the benefit of Purchaser or the Acquired Companies.
(b) Notwithstanding Section 7.5(a)(ii), Sellers and their Affiliates shall not be prohibited from or restricted Company Group in any way capacity (with respect to: to this clause (iB)) advertising job openings by use in which Employee’s duties or responsibilities are the same as or similar to the duties or responsibilities that Employee had on behalf of newspapers, magazines, any member of the Internet and other media not specifically directed at individual Transferred Employees or hiring any such Transferred Employees as a result thereof; Company Group;
(ii) hiring or soliciting appropriate any Transferred Employee who has terminated employment with Purchaser, the Acquired Companies or any Affiliate thereof, at least nine (9) months prior to the date of first contact by Seller or its Affiliates with such Transferred EmployeeBusiness Opportunity of, or whose employment has been terminated by Purchaserrelating to, any member of the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; Company Group located in the Market Area;
(iii) continuing solicit, canvass, approach, encourage, entice or induce any customer, franchisee, real estate sales associate, loan originator, or regional owner of a franchise (A) to engage end their franchise or contract (or reduce their business) with any member of the Company Group or (B) to enter into any service to Employee or any other business, organization, program or activity, in any business each case (other than with respect to this clause (B)) that competes with the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; or
(iv) holding as a passive investment not more than five percent (5%) solicit, canvass, approach, encourage, entice or induce any employee or contractor of any member of the outstanding voting securities Company Group to terminate his, her or its employment or engagement with any member of any company (whether public the Company Group. Notwithstanding the foregoing, nothing in this Section 10 shall restrict Employee from engaging or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged participating in 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 activity permitted pursuant to the date of such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such PersonSection 2(a).
(c) Seller expressly acknowledges that (i) each Because of the restrictions contained difficulty of measuring economic losses to the Company Group as a result of a breach or threatened breach of the covenants set forth in this Section 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 in10, and value ofbecause of the immediate and irreparable damage that would be caused to the members of the Company Group for which they would have no other adequate remedy, the Acquired Companies’ businesses Company and each other member of the Company Group shall be entitled to enforce the foregoing covenants, in the event of a breach or threatened breach, by injunctions and restraining orders from any court of competent jurisdiction, without the necessity of showing any actual damages, and without the necessity of posting any bond or other security. The aforementioned equitable relief shall not be the Company’s or any other member of the Company Group’s exclusive remedy for a breach but instead shall be in addition to all other rights and remedies available to the Company and each other member of the Company Group at law and equity.
(including the goodwill inherent therein), (iid) 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, The covenants and agreements contained in this Section 7.5 10, and each provision and portion hereof, are severable and separate, and the unenforceability of any specific covenant (ivor portion thereof) Purchaser would shall not have entered into this Agreement affect the provisions of any other covenant (or portion thereof). Moreover, in the event 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 shall determine that the scope, time period of any or territorial restrictions set forth are unreasonable, then it is the intention of the foregoing covenants is too lengthy or parties that such restrictions be enforced to the geographic coverage or scope of any of fullest extent which such court deems reasonable, and this Agreement shall thereby be reformed.
(e) The following terms shall have 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.following meanings:
Appears in 1 contract
Samples: Interim Executive Agreement (RE/MAX Holdings, Inc.)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFor a period of five (5) years commencing on the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, each Seller shall not, and shall cause not permit any of its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
indirectly: (i) for a period of four engage in or assist others in engaging in the Restricted Business; (4ii) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, in any other Person that, that engages directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere indirectly in the worldRestricted Business in the Territory in any capacity, including as a partner, shareholder, director, officer, member, employee, principal, agent, trustee or consultant; and
or (iiiii) intentionally interfere in any material respect with the business relationships (Awhether formed prior to or after the date of this Agreement) for of Buyer or IPS and their respective customers or suppliers. Notwithstanding the foregoing, a period Seller may own, directly or indirectly, solely as an investment, securities of three (3) years following the Closing Date, solicit, entice, encourage or influenceany Person traded on any national securities exchange if such Seller is not a controlling Person of, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any a member of the Senior Management a group which controls, such Person and does not, directly or indirectly, own 5% or more of the Business to perform services other than for the benefit any class of Purchaser or the Acquired Companies or (B) for a period securities of two (2) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companiessuch Person.
(b) Notwithstanding Section 7.5(a)(ii)During the Restricted Period, Sellers each Seller shall not, and their Affiliates shall not be prohibited permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of IPS or 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 5.02(b) shall prevent a Seller or any of its Affiliates from or restricted in any way with respect tohiring: (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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or employee whose employment has been terminated by Purchaser, the Acquired Companies IPS or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller Buyer; or its Affiliates prior thereto; (iiiii) continuing to engage in any business after one hundred and eighty (other than the Business180) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of days from the date of this Agreementtermination of employment, including any employee whose employment has been terminated by the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personemployee.
(c) During the Restricted Period, each Seller expressly 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 IPS or Buyer or any potential clients or customers of IPS or Buyer for purposes of diverting their business or services from IPS.
(d) Each Seller acknowledges that a breach or threatened breach of this Section 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 a 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 (iwithout any requirement to post bond).
(e) each of Each Seller acknowledges that the restrictions contained in this Section 7.5 5.02 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, the legitimate interests of Buyer and value of, constitute a material inducement to Buyer to enter into this Agreement and the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) Ancillary Documents and consummate the transactions contemplated by this Agreement constitute good, valid hereby and binding consideration for Seller’s obligations, covenants and agreements thereby. In the event that any covenant contained in this Section 7.5 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service, or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 5.02 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) Subject The Company and Xxxxx X. Xxxxxx, X. Xxxxx Xxxxxx, Xxxxx X. Xxxxx and Xxxxxxx X. Xxxxxx (the "Senior Managers") understand and acknowledge that (i) the billing services, check printing, integrated payables and commercial printing industries (the "Printing Business") are highly competitive throughout the United States and in many other locations worldwide; (ii) the Company and its Subsidiaries expend substantial time and money, on an ongoing basis, to train their employees, maintain and expand their client base, and improve and develop their services and technology; (iii) the Senior Managers have had access to, received, and learned of proprietary and confidential knowledge and information of the Company; such knowledge and information must be kept in strict confidence to protect the Printing Business of the Company for the benefit of the Company's competitive position, and such confidential information could be useful to competitors of the Company for indefinite periods of time; (iv) Parent and the Surviving Corporation shall be entitled to protect and preserve the going concern value of the Printing Business of the Company to the fullest extent permitted by applicable Law; and (v) the provisions of this Section 7.5(b6.8 are an integral part of the obligations of the Senior Managers hereunder and Parent and Merger Sub would not have entered into this Agreement absent the provisions of this Section 6.8.
(b) From the Closing Date until the second (2rd) anniversary of the later of (i) the Closing Date and (ii) the date such individual ceases to be an employee of the Company, each of the Senior Managers shall not, directly or indirectly, (A) engage in any business that competes against Parent, the Surviving Corporation or its Subsidiaries in the Printing Business ("Competitive Activities"), (B) communicate with or solicit any Person who is or during such period becomes a client or customer of the Surviving Corporation or any of its Subsidiaries in an effort to obtain any such Person as a material inducement client or customer for any Person that conducts a business competitive with or similar to Purchaser all or any part of the Printing Business, or (C) establish, own, manage, operate, finance or control, or participate in the establishment, ownership, management, operation, financing or control of, or be an agent or representative of, or be a consultant to, any Person that conducts a business competitive with or similar to enter into this Agreementall or any part of the Printing Business.
(c) Section 6.8(b) shall be deemed not breached as a result of the ownership, Seller directly or indirectly, by any Senior Manager of: (i) less than an aggregate of 5% of the voting power of any class of publicly traded equity securities of a Person engaged, directly or indirectly, in Competitive Activities or (ii) less than an aggregate of 10% in value of any instrument of indebtedness of a Person engaged, directly or indirectly, in Competitive Activities.
(d) From the Closing Date until the third (3rd) anniversary of the later of (i) the Closing Date and (ii) the date such individual ceases to be an employee of the Company, each Senior Manager shall, and shall cause each of his respective Affiliates not to, directly or indirectly, solicit or hire any individual who was an employee of the Company or any of its Subsidiaries as of the Closing Date or who becomes an employee of the Surviving Corporation or any of its Subsidiaries after the Closing Date.
(e) At all times after the Closing Date, except with Parent's prior written consent, each of GSC Partners and the Senior Managers shall not, and shall cause its each of their respective Affiliates not to, directly or indirectly communicate, publish or otherwise disclose to any Person, or use (whether by itself, through an Affiliate for their own benefit or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, for the benefit of any other Person):
), any confidential or proprietary property, knowledge or information of the Company or any of its Subsidiaries or relating to the Printing Business or concerning any of the Company's or its Subsidiaries' business, assets, operations or financial condition, no matter when or how such knowledge or information was acquired, including (i) pricing policies, marketing and sales strategies, methods of delivering services, and service development projects and strategies; (ii) designs, concepts, know-how, user manuals, technical manuals and other documentation for trading systems, communications networks and related technologies; (iii) employment and payroll records; (iv) forecasts, budgets and other nonpublic financial information; and (v) expansion plans, management policies, methods of operation, and other business strategies and policies; including acquisition strategies and acquisition targets. Notwithstanding the foregoing, the restriction contained in the preceding sentence shall not apply to any information which (i) is in or enters the public domain through no fault of such Person subject to the restriction, or (ii) is required by Law or by any Governmental Authority to be disclosed, provided that such Person shall use commercially reasonable efforts to first consult with Parent and allow Parent to seek an appropriate protective order at Parent's expense.
(f) If any provision of this Section 6.8, or the application thereof, is construed to be invalid, illegal or unenforceable, then the other provisions of this Section 6.8, or the application thereof, shall not be affected thereby and shall be enforceable without regard thereto. If any provision of this Section 6.8, or the application thereof, is determined to be unenforceable because of its scope, duration, geographical area or other factor, then the court making such determination shall have the power to reduce or limit such scope, duration, area or other factor, and such provision shall then be enforceable in its reduced or limited form.
(g) Each party expressly acknowledges and agrees that it would be extremely difficult to measure the damages that might result from a breach of any provision of this Section 6.8, and that a breach of a provision of this Section 6.8 will result in irreparable injury to a party for which money damages could not adequately compensate. If a breach of any provision of this Section 6.8 occurs, a party shall be entitled, in addition to all other rights and remedies that such party may have at law or in equity, to have an injunction issued by any competent court enjoining and restraining the other party and all other Persons involved therein from continuing such breach without the posting of any bond or surety or satisfying any similar request. The existence of any claim or cause of action that a party or any such other Person may have against the other party shall not constitute a defense or bar to the enforcement of the provisions of this Section 6.8. If any party must resort to litigation to enforce any provision of this Section 6.8 that has a fixed term, then such term shall be extended for a period of four (4) years following time equal to the Closing Dateperiod during which such breach was occurring, undertake, manage, participate in, carry beginning on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere in the world, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
(ii) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) 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 the date of first contact by Seller or its Affiliates with a court order holding that such Transferred Employeea breach occurred or, or whose employment has been terminated by Purchaserif later, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as last day of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 original fixed term of such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personprovision.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 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 1 contract
Samples: Merger Agreement (Moore Wallace Inc)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFor a period of three (3) years commencing on the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, Seller Sellers shall not, and shall cause its not permit any of their Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on (i) engage in or is engaged in, any Competing Business Activities anywhere assist others in engaging in the worldRestricted 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; and
or (iiiii) (A) for a period of three (3) years following the Closing Datecause, solicitinduce or encourage any material actual or prospective client, enticecustomer, encourage supplier or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any member of the Senior Management licensor of the Business to perform services other than for (including any existing or former client or customer of Sellers and any Person that becomes a client or customer of the benefit of Purchaser or Business after the Acquired Companies or (B) for a period of two (2) years following the Closing Date, solicit, entice, encourage or influenceClosing), or attempt any other Person who has a material business relationship with the Business, to solicitterminate or modify any such actual or prospective relationship. Notwithstanding the foregoing, enticeSellers may own, encourage directly or influenceindirectly, solely as an investment, securities of any Person traded on any national securities exchange if Sellers are not a controlling Person of, or attempt to solicita member of a group which controls, enticesuch Person and does not, encourage directly or influenceindirectly, own 5% or more of any Transferred Employee to resign or otherwise leave the employ class of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any Transferred Employee to perform services other than for the benefit securities of Purchaser or the Acquired Companiessuch Person.
(b) Notwithstanding Section 7.5(a)(ii)During the Restricted Period, Sellers shall not, and shall not permit any of their Affiliates to, directly or indirectly, hire or solicit any person who is offered employment by Buyer pursuant to Section 6.05, 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 not be prohibited prevent Sellers or any of their Affiliates from or restricted in any way with respect to: retaining the services of (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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or employee whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller Buyer (or its Affiliates prior thereto; applicable Affiliate) or (iiiii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of after 180 days from the date of this Agreementtermination of employment, including any employee whose employment has been terminated by the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personemployee.
(c) Seller expressly acknowledges Sellers acknowledge that a breach or threatened breach of this Section 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 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 (iwithout any requirement to post bond).
(d) each of Sellers acknowledge that the restrictions contained in this Section 7.5 6.07 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, the legitimate interests of Buyer and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 6.07 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 1 contract
Samples: Asset Purchase Agreement (Diversified Restaurant Holdings, Inc.)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(b), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for For a period of four five (45) years following commencing on the Closing DateDate (the “Restricted Period”), undertakeno Key Seller shall, manage, participate in, carry on or be engaged in, or in nor shall any manner own, operate, or, with respect to Key Seller permit any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thatAffiliate of such Key Seller to, directly or indirectly, undertakes, manages, participates in, carries on (i) engage in or is engaged in, any Competing Business Activities anywhere assist others in engaging in the worldRestricted 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; and
or (iiiii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between Buyer and its Affiliates (including the Company) (Athe “Buyer Group”) for and customers or suppliers of the Buyer Group. Notwithstanding the foregoing, any Key Seller may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if such Key Seller is not a period of three (3) years following the Closing Date, solicit, entice, encourage or influencecontrolling Person of, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any a 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 Dategroup which controls, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companiessuch Person.
(b) Notwithstanding Section 7.5(a)(ii)During the Restricted Period, Sellers and their Affiliates no Key Seller shall, nor shall any Key Seller permit any Affiliate of such Key Seller to, directly or indirectly, solicit or encourage any employee of Buyer Group to leave such employment, other than through a general solicitation which is 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 directed specifically directed at individual Transferred Employees or hiring to any such Transferred Employees as a result thereof; (ii) hiring employee, or soliciting hire any Transferred Employee Person who has terminated employment with Purchaser, the Acquired Companies or was an employee of Buyer Group at any Affiliate thereof, at least nine (9) months prior to time after the date of first contact by Seller or its Affiliates their employment with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such PersonBuyer Group.
(c) During the Restricted Period, no Key Seller expressly shall, nor shall any Key Seller permit any Affiliate of such Key Seller to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of Buyer Group or potential clients or customers of Buyer Group for purposes of diverting their business or services from Buyer Group.
(d) During the Restricted Period, no Xxxxx Xxxxx, Jr. Family Member shall, directly or indirectly, solicit or encourage any Key Seller or other employee of Buyer Group to leave such employment, other than through a general solicitation which is not directed specifically to any such employee, or hire any Key Employee or other Person who was an employee of Buyer Group at any time after the date of their employment with Buyer Group.
(e) Each Key Seller and each Xxxxx Xxxxx, Jr. Family Member acknowledges that a breach or threatened breach of this Section 6.07 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and that in the event of a breach or a threatened breach by any Key Seller or any Xxxxx Xxxxx, Jr. Family Member, as the case may be, 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 (iwithout any requirement to post bond).
(f) Each Key Seller and each of Xxxxx Xxxxx, Jr. Family Member acknowledges that the restrictions contained in this Section 7.5 6.07 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, the legitimate interests of Buyer and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service, or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 6.07 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 1 contract
Samples: Stock and Warrant Purchase Agreement (Wavedancer, Inc.)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(b)During the Restricted Period, as a material inducement to Purchaser to enter into this Agreement, Seller each of the Sellers shall not, and shall cause not permit any of its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on (i) engage in or is engaged in, any assist others in engaging in a Competing Business Activities anywhere in the worldTerritory; (ii) have an interest in any Person that engages directly or indirectly in a Competing Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
(iii) intentionally interfere in any material respect with the business relationships (whether formed before or after the date of this Agreement) of the Company, Buyer or any of their respective Affiliates; or (iv) solicit, induce, call on or attempt to solicit, induce or call on, any of the customers of or any consultants or independent contractors who provide services to or on behalf of the Company, Buyer or any of their respective Affiliates for the purposes of diverting business or services from the Company, Buyer or any of their respective Affiliates. Notwithstanding the foregoing, during the Restricted Period: (1) each Seller may own, directly or indirectly, solely as a passive investment, securities of any Person traded on any national securities exchange if such Seller does not a control such Person and does not, directly or indirectly, own 2% or more of any class of securities of such Person or participate in the management thereof, (2) with respect to any entity in which Momentum holds an interest as of the date hereof (a “Pre-Closing Portfolio Company”), Momentum, its manager and its owner (collectively, “MEP”) shall not be deemed to have violated this Section 7.4(a) solely by reason of MEP’s or any of its investment professionals’ (i) service as a board member or board observer or, if the Pre-Closing Portfolio Company is a limited liability company, as the manager of a Pre-Closing Portfolio Company or (ii) direct or indirect ownership of a Pre-Closing Portfolio Company, so long as, in the case of each of the foregoing clauses (Ai) for and (ii), MEP or any of its investment professionals shall not have directly or indirectly, proposed, encouraged or otherwise identified or been actively involved in the action that would otherwise be prohibited by the provisions of this Section 7.4(a) and (3) with respect to any entity in which Momentum initially acquires an interest after the date hereof (a “Post-Closing Portfolio Company”), MEP shall not be deemed to have violated this Section 7.4(a) solely by reason of MEP’s or any of its investment professionals’ (i) service as a board member or board observer or, if the Post-Closing Portfolio Company is a limited liability company, as the manager of a Post-Closing Portfolio Company or (ii) direct or indirect ownership of a Post-Closing Portfolio Company, so long as, in the case of each of the foregoing clauses (i) and (ii), the Post-Closing Portfolio Company is not engaged in or assisting others in engaging in a Competing Business in the Territory at the time of any investment by MEP and MEP or any of its investment professionals shall not have directly or indirectly, proposed, encouraged or otherwise identified or been actively involved in the action that would otherwise be prohibited by the provisions of this Section 7.4(a).
(b) For a period of three (3) five years following commencing on the Closing Date, soliciteach of the Sellers shall not, enticeand shall not permit any of its Affiliates to, encourage directly or influenceindirectly, hire, 00000000.00.XXXXXXXX solicit or induce, or attempt to solicit, entice, encourage hire or influence, or attempt to solicit, entice, encourage or influenceinduce, any of individuals listed on Schedule 7.5(a)(ii)(A) employee of the Seller Disclosure Schedule (collectivelyCompany, the “Senior Management Buyer or their Affiliates or encourage any such employee to leave or reduce such employment for any reason whatsoever or hire, offer to hire, provide employment or otherwise engage, either on a full-time or part-time basis or a consulting basis, any such employee of the Business”Company, Buyer or their Affiliates; provided that nothing in this Section 7.4(b) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with shall prevent 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) 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 Seller or any Affiliate thereof, at least nine (9) months prior to the date of first contact by Seller or its Affiliates with such Transferred Employee, or from hiring (x) any employee whose employment has been terminated by Purchaserthe Company, the Acquired Companies Buyer or their Affiliates (except if such employee caused himself or herself to be terminated so that such employee could be hired, directly or indirectly, by any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates Affiliates); (other than the Acquired Companiesy) engages in as of after 180 calendar days from the date of this Agreementtermination of employment, including any employee whose employment has been terminated by the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) that is primarily engaged in Competing Business Activitiesemployee; or (v) acquiring (in a single transaction or series of related transactionsz) any Person employee who responds to a general solicitation that isis not directed specifically to any Buyer or Company employees or the employees of their Affiliates; provided further that, from and after the later of (i) two years after the Closing Date and (ii) six months after the expiration or has a subsidiarytermination of the Sublease Agreement in accordance with its terms, division, group, franchise or segment no Seller shall be deemed to have violated this Section 7.4(b) if an Affiliate of such Seller takes action that is, engaged in any Competing Business Activity and, following such acquisition, actively engaging in any such Competing Business Activity, would otherwise be prohibited by the provisions of this Section 7.4(b) so long as for such Seller did not, directly or indirectly, refer, engage or participate in, propose or facilitate the most recent fiscal year ended prior to solicitation, hiring or inducement by such Affiliate that would otherwise be prohibited by the date provisions of such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personthis Section 7.4(b).
(c) At all times, each Seller expressly acknowledges that shall, and shall cause its Affiliates to, keep confidential and not disclose to any other Person or use for its own benefit or the benefit of any other Person any confidential or proprietary information, technology, know-how, trade secrets, industrial designs, franchises, inventions or other industrial and Intellectual Property regarding the Company or any of its businesses or operations (“Confidential Information”) in its possession or control. The obligations of the parties under this Section 7.4(c) shall not apply to Confidential Information which (i) is or becomes generally available to the public without breach of the commitment provided for in this Section 7.4(c); or (ii) is required to be disclosed by Law, order or regulation of a court or tribunal or Governmental Authority; provided, however, that, in any such case, the disclosing party shall notify the Company as early as practicable prior to disclosure to allow the Company to take appropriate measures to preserve the confidentiality of such Confidential Information.
(d) If a Seller breaches, or threatens to commit a breach of, any of the provisions of this Section 7.4, Buyer and the Company shall have the right and remedy to have such provision specifically enforced by any court having competent jurisdiction (without any requirement to post a bond), it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to each of Buyer, the Company or their Affiliates 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 Buyer and the Company under Law or in equity.
(e) Each Seller acknowledges and agrees that the restrictions contained in this Section 7.5 7.4 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 legitimate interests 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.Buyer and
Appears in 1 contract
Samples: Share Purchase Agreement (Cdi Corp)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFor a period of five years commencing on the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, Seller the Shareholders shall not, and shall cause not permit any of its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
indirectly: (i) for a period of four engage in or assist others in engaging in engaging in merchant services and or credit/debit card processing (4the “Restricted Business”) years following in the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or United States (the “Territory”); (ii) have an interest in, in any other Person thatthat engages, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere in the worldRestricted Business in the Territory in any capacity, including as a partner, shareholderstockholder, director, officer, member, manager, employee, contractor, principal, agent, trustee volunteer, intern, advisor, or consultant; and
(ii) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing provide any business opportunity of which the Shareholders becomes aware related to engage the Restricted Business to any entity without first offering it to the Company and giving it a right to pursue the opportunity or right of first refusal for 60 days, or (iv) intentionally interfere in any material respect with the business relationships (other than the Business) that Seller whether formed prior to or any of its Affiliates (other than the Acquired Companies) engages in as of after the date of this Agreement, including ) between the operations set forth on Schedule 7.5(b)(iii) Company and customers or suppliers of the Seller Disclosure Schedule; (iv) holding Company. Notwithstanding the foregoing, the Shareholders may own, directly or indirectly, solely as a passive investment not more than five percent (5%) of the outstanding voting an investment, securities of any company (whether public or private) that is primarily engaged in Competing Business Activities; or (v) acquiring (in Person traded on any national securities exchange if the Shareholders are not a single transaction or series of related transactions) any controlling Person that isof, or has a subsidiarymember of a group which controls, divisionsuch Person and does not, groupdirectly or indirectly, franchise own 5% or segment that is, engaged in more of 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 class of such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues securities of such Person.
(b) During the Restricted Period, the Shareholders shall not, and shall not permit any of its Affiliates 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 for five years commencing on the Closing Date.
(c) Seller expressly acknowledges The Shareholders acknowledge that a breach or threatened breach of this Section 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 the Shareholders 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 (iwithout any requirement to post bond).
(d) each of The Shareholders acknowledge that the restrictions contained in this Section 7.5 5.02 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, the legitimate interests of Buyer and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 and (iv) Purchaser would not have entered into this Agreement 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 of Governmental Order, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the transactions contemplated hereby without the restrictions maximum time, geographic, product or service, or other limitations permitted by applicable Law or such Governmental Order. The covenants contained in this Section 7.5 5.02 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 1 contract
Non-Competition; Non-Solicitation. I acknowledge the highly competitive nature of the business of the Company, and accordingly, in order to protect the Company’s confidential and proprietary information, trade secrets, good will, and other legitimate business interests, agree as follows:
A. During the period commencing on the Effective Date and ending one (a1) Subject to Section 7.5(byear following the Closing (as defined in the Merger Agreement) (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates I will not to, directly or indirectly indirectly, for myself or any other person or entity, alone or through any other organization or entity, including without limitation by becoming an employee, investor (whether by itselfexcept as provided below), through an Affiliate or in partnership or conjunction with or forofficer, or as a memberagent, consultant, partner, co-venturer, owner, consultant member, director or agent ofotherwise, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or engage in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thatactivity that competes, directly or indirectly, undertakeswith any product or service manufactured, managessold or under development by the Company as of the Effective Date or the Closing (“Competitive Activity”). Notwithstanding the foregoing, participates in, carries on I will not be deemed to be engaged directly or is engaged in, indirectly in any Competing Business Activities anywhere Competitive Activity if I participate in the world, including any such business solely as a partnerpassive investor in up to one percent (1%) of the equity securities of a company or partnership.
B. During the Restricted Period, shareholderI will not directly or indirectly, member, employee, principal, agent, trustee for myself or consultant; and
any other person or entity: (iia) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage divert or influencetake away, or attempt to solicit, enticedivert or take away, encourage the business or influencepatronage of any of the clients, customers or accounts, or attempt to solicitprospective clients, entice, encourage customers or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) accounts of the Seller Disclosure Schedule (collectively, Company or its affiliates with whom the “Senior Management Company or its affiliates has or is actively negotiating a written agreement as of the Business”) to resign or otherwise leave the employ date as of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) 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 which my employment with Purchaser, the Acquired Companies or any Affiliate thereof, at least nine (9) months prior to the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller Company or any of its Affiliates affiliates terminates (other than the Acquired Companies“Separation Date”); (b) engages in as recruit, solicit or hire any person who is, or within the six (6) month period preceding the Separation Date was, an officer, director or employee of the date Company or any of this Agreement, including its affiliates or was a scientific consultant with an exclusive arrangement with the operations set forth on Schedule 7.5(b)(iii) Company or any of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) that is primarily engaged in Competing Business Activitiesits affiliates; or (vc) acquiring (in a single transaction induce or series of related transactions) attempt to induce any Person that isofficer, director, employee, consultant, agent or has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) representative of the total consolidated revenues of such Person.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 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 Company or any of its affiliates to discontinue his or her relationship with 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 Company or any of the foregoing covenants is too lengthy its affiliates or the geographic coverage to commence an employment 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 covenantother business relationship with another entity.
Appears in 1 contract
Samples: Non Disclosure, Inventions Assignment, Non Competition and Non Solicitation Agreement (Arqule Inc)
Non-Competition; Non-Solicitation. (a) Subject For purposes of Section 5.03, references to Section 7.5(b“Seller” shall mean “Seller and Parent” and references to the “Company” shall mean “the Company and the Company Subsidiaries”. For a period of two years commencing on the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause not permit any of its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on (i) engage in or is engaged in, any Competing Business Activities anywhere assist others in engaging in the worldRestricted 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; and
or (iiiii) intentionally interfere in any material respect with the business relationships (Awhether formed prior to or after the date of this Agreement) for between the Company and customers or suppliers of the 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 period of three (3) years following the Closing Date, solicit, entice, encourage or influencecontrolling Person of, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any a member of the Senior Management a group which controls, such Person and does not, directly or indirectly, own 3% or more of the Business to perform services other than for the benefit any class of Purchaser or the Acquired Companies or (B) for a period securities of two (2) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companiessuch Person.
(b) Notwithstanding Section 7.5(a)(ii)During the Restricted Period, Sellers Seller shall not, and their Affiliates shall not be prohibited 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 general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 5.03(b) shall prevent Seller or any of its Affiliates from or restricted in any way with respect to: hiring (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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or employee whose employment has been terminated by Purchaser, the Acquired Companies Company or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller Buyer or its Affiliates prior thereto; (iiiii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of after one year from the date of this Agreementtermination of employment, including any employee whose employment has been terminated by the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personemployee.
(c) During the Restricted Period, Seller expressly 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 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 (iwithout any requirement to post bond).
(e) each of Seller acknowledges that the restrictions contained in this Section 7.5 5.03 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, the legitimate interests of Buyer and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service, or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 5.03 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFor a period of three years commencing on the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause not permit any of its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on (i) engage in or is engaged in, any Competing Business Activities anywhere assist others in engaging in the worldRestricted 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; and
or (iiiii) intentionally interfere in any material respect with the business relationships (Awhether formed prior to or after the date of this Agreement) for between any Company or Company Subsidiary and customers or suppliers of any Company or Company 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 period of three (3) years following the Closing Date, solicit, entice, encourage or influencecontrolling Person of, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any a member of the Senior Management a group which controls, such Person and does not, directly or indirectly, own 5% or more of the Business to perform services other than for the benefit any class of Purchaser or the Acquired Companies or (B) for a period securities of two (2) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companiessuch Person.
(b) Notwithstanding Section 7.5(a)(ii)During the Restricted Period, Sellers Seller shall not, and their Affiliates shall not be prohibited permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of any Company or Company Subsidiary 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 5.7(b) shall prevent Seller or any of its Affiliates from or restricted in any way with respect to: hiring (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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or employee whose employment has been terminated by Purchasera Company, the Acquired Companies Company Subsidiary or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller Parent or its Affiliates prior thereto; (iiiii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of after 180 days from the date of this Agreementtermination of employment, including any employee whose employment has been terminated by the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personemployee.
(c) During the Restricted Period, Seller expressly 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 any Company or Company Subsidiary or potential clients or customers of any Company or Company Subsidiary for purposes of diverting their business or services from the Company or Company Subsidiary.
(d) Seller shall use its reasonable best efforts to cause its chief executive officer, president, chief operating officer, chief financial officer and general counsel (together the “Seller’s Officers”) to execute written agreements in favor of Parent effective on the Closing Date under which Seller’s Officers agree to non-competition and non-solicitation restrictions substantially similar to those agreed to by Seller in this Section 5.7.
(e) Seller acknowledges that a breach or threatened breach of this Section 5.7 would give rise to irreparable harm to Buyer and Parent, 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 and Parent shall, in addition to any and all other rights and remedies that may be available to them 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 (iwithout any requirement to post bond).
(f) each of Seller acknowledges that the restrictions contained in this Section 7.5 5.7 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, the legitimate interests of Buyer and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) Parent and constitute a material inducement to Buyer and Parent to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 5.7 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service, or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 5.7 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Graymark Healthcare, Inc.)
Non-Competition; Non-Solicitation. (a) Subject For purposes of this Section 6.6, NAFP, NAM, Shareholders or Member shall be referred to Section 7.5(b), individually and collectively as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for the “Restricted Parties.” For a period of four five (45) years following commencing on the Closing DateDate (the "Restricted Period"), undertakenone of the Restricted Parties, manageeither individually or collectively, participate inshall, carry on nor shall him/her or be engaged in, or in it permit any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thatof its Affiliates to, directly or indirectly, undertakes, manages, participates in, carries on (i) engage in or is engaged in, any Competing Business Activities anywhere assist others in engaging in the worldRestricted 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; and
or (iiiii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (Aincluding any existing or former client or customer of Sellers 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, the Restricted Parties may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if the Restricted Parties are 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. If a court of competent jurisdiction determines that the Restrictive Period is unenforceable, the Restrictive Period shall be defined as a four (4) for year period commencing on the Closing Date. If, however, a period court of competent jurisdiction determines that the Restrictive Period is unenforceable, the Restrictive Period shall be defined as a three (3) years following year period commencing on the Closing Date. If, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any however a court of individuals listed on Schedule 7.5(a)(ii)(A) of competent jurisdiction determines that the Seller Disclosure Schedule (collectivelyRestrictive Period is unenforceable, the “Senior Management Restrictive Period shall be defined as a two (2) year period commencing on the Closing Date. If, however, a court of competent jurisdiction determines that the Business”Restrictive Period is unenforceable, the Restrictive Period shall be defined as a one (1) year period commencing on the Closing Date. Notwithstanding anything contained herein to resign or otherwise leave the employ of Purchaser or contrary the Acquired Companies or otherwise hirerestricted period for Xxxx X. XxXxxxxx, employXxxxxx X. Xxxxxx, engage 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) and Xxxx Xxxxxxxx shall be for a period of two (2) years following commencing on the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) Notwithstanding Section 7.5(a)(ii)During the Restricted Period, Sellers the Restricted Parties shall not, and their Affiliates shall not be prohibited permit any of his/her/its Affiliates to, directly or indirectly, hire or solicit any person who is offered employment by Buyer pursuant to Section 7.4(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 7.6(b) shall prevent the Restricted Parties or any of his/her/its Affiliates from or restricted in any way with respect to: hiring (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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or employee whose employment has been terminated by Purchaser, the Acquired Companies Buyer or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iiiii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of after 180 days from the date of this Agreementtermination of employment, including any employee whose employment has been terminated by the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personemployee.
(c) Seller expressly The Restricted Parties acknowledges that a breach or threatened breach of this Section 7.6 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 Parties 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 (iwithout any requirement to post bond).
(d) each of The Restricted Parties acknowledges that the restrictions contained in this Section 7.5 7.6 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, the legitimate interests of Buyer and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 7.6 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 7.6 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFor a period of twelve (12) months commencing on the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause not permit any of its Affiliates not subsidiaries to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere in the world, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
(ii) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) 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, engage in the Internet and other media not specifically directed at individual Transferred Employees or hiring any such Transferred Employees as a result thereofRestricted Business in the Territory; (ii) hiring have an equity interest in any Person that engages directly or soliciting indirectly in the Restricted Business in the Territory; or (iii) intentionally interfere in any Transferred Employee who has terminated employment material respect with Purchaser, the Acquired Companies or any Affiliate thereof, at least nine business relationships (9) months whether formed prior to or after the date of first contact by this Agreement) between either Acquired Company, on the one hand, and customers or suppliers of either Acquired Company, on the other hand. Notwithstanding the foregoing, Seller and its subsidiaries may (i) own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Seller or its Affiliates with such Transferred Employeesubsidiary, as applicable, is not a controlling Person of, or whose employment has been terminated by Purchasera member of a group that controls, such Person and does not, directly or indirectly, own five (5%) or more of any class of securities of such Person, and (ii) continue to perform their businesses in substantially the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by same manner in which Seller or and its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates subsidiaries (other than the Acquired Companies) engages performed their businesses immediately prior to Closing (including the operation of the Helix Producer I, maintaining the overriding royalty interests in effect as of the Closing Date (other than those owned by the Acquired Companies), and the use of the Excluded Assets).
(b) During the Restricted Period, Seller shall not, and shall not permit any of its subsidiaries to, directly or indirectly, hire or solicit any employee of either Acquired 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 8.3(b) shall prevent Seller or any of its subsidiaries from hiring (i) any employee whose employment has been terminated by either Acquired Company; (ii) after 180 days from the date of this Agreementtermination of employment, including any employee whose employment has, to the operations set forth on Schedule 7.5(b)(iii) Knowledge of Seller, been terminated by the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) that is primarily engaged in Competing Business Activitiesemployee; or (v) acquiring (in a single transaction or series of related transactionsiii) any Person that is, employee who responds to a general solicitation for employment by Seller or has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personits subsidiaries.
(c) During the Restricted Period, Seller expressly shall not, and shall not permit any of its subsidiaries to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of either Acquired Company or potential clients or customers of either Acquired Company for purposes of diverting their business or services from either Acquired Company.
(d) Seller acknowledges that (i) each a breach or threatened breach of the restrictions contained in this Section 7.5 are reasonable 8.3 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 respects (including with other rights and remedies that may be available to it in 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 valuebreach, (iii) the transactions contemplated by this Agreement constitute goodbe entitled to equitable relief, valid including a temporary restraining order, an injunction, specific performance 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 other relief that may be available from a court of competent jurisdiction finds (without any requirement to post bond).
(e) Seller explicitly represents and warrants to Buyer that Seller is incurring the time period of any of the foregoing covenants is too lengthy or the geographic coverage or scope of any obligations of the covenants in this Section 8.3 as an inducement to Buyer to enter into this Agreement and as an essential element of Buyer’s agreement to acquire the Purchased Equity and pay the purchase price for the Purchased Equity, and Buyer would not have done so but for the agreement by Seller to comply with the terms and provisions hereof.
(f) Seller understands and acknowledges that Buyer has made substantial investments to acquire the Purchased Equity, including its business interests, goodwill and confidential information of the Acquired Companies. Seller agrees that such investments are worthy of protection and that Buyer’s need for the protection afforded by this Section 8.3 is too broadgreater than any hardship Seller might experience by complying with its terms. Seller agrees that the limitations as to time, the restrictive time period will be deemed geographic area and scope of activity to be restrained contained in this Agreement are fair and reasonable and are not greater than necessary to protect the longest period permissible under legitimate interests of Buyer. In the event that any covenant contained in this Section 8.3 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Legal Requirement Law in any jurisdiction, then any court is expressly empowered to reform such covenant to the maximum time, geographic, product or service, or other limitations permitted by applicable Law in such jurisdiction. The covenants contained in this Section 8.3 and the geographic coverage each provision hereof are severable and scope will be deemed to comprise the largest coverage distinct covenants and scope permissible under applicable Legal Requirementsprovisions. With respect to each restrictive covenant, the contemplated restricted period shall be extended during the term The invalidity or unenforceability of any breach of such restrictive covenantcovenant 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 Agreement (Helix Energy Solutions Group Inc)
Non-Competition; Non-Solicitation. (a) Subject In order to Section 7.5(b)allow Buyer to realize the full benefit of its bargain in connection with the purchase of the Membership Interests, as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates not to, directly none of the Sellers or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, Xxxxxxx will at any other Person):
(i) for a period of four (4) years following time during the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thatRestricted Period, directly or indirectly, undertakesacting alone or as a member of a partnership or as a holder of any security of any class, managesor as an employee, participates consultant to or representative of, any corporation or other business entity:
(i) engage in, carries continue in or carry on any business which competes with the Business within the Territory or the businesses conducted by Buyer or any Person indirectly or directly controlled by the Buyer as of the Closing Date, wherever such businesses are then conducted, including owning or controlling any financial interest in any corporation, partnership, firm or other form of business organization which is so engaged; provided, however that, as it applies to Xxxxx, the parties acknowledge that Xxxxx is currently engaged in, any Competing Business Activities anywhere in the worldwind energy business and that, including as for purposes of this Section 7.1(b)(i), Xxxxx shall only be prohibited from competing with that portion of the Business which consists of the operation and/or maintenance of wind turbines; provided, however, that if Xxxxx and Buyer mutually agree, such prohibition may be waived to the extent set forth in a partner, shareholder, member, employee, principal, agent, trustee or consultant; andwritten agreement duly executed by Xxxxx and Buyer. Xxxxx further acknowledges and agrees that Buyer shall have the right to reject any such request for waiver in Buyer’s absolute and sole discretion.
(ii) (A) solicit any customers of the Company or of Buyer or any Person indirectly or directly controlled by the Buyer for a period purposes of three (3) years following offering products or services that are directly competitive with the products or services offered by the Business or of Buyer or any Person indirectly or directly controlled by the Buyer as of the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.; or
(b) 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing hire, offer to engage in hire, or solicit for employment any business (other than employee of the Business) that Seller Company, Buyer or any Person indirectly or directly controlled by the Buyer, without the prior consent of Buyer, which may be withheld or delayed by Buyer in its Affiliates (other than sole discretion, until such employee has been separated from employment by the Acquired Companies) engages in as of the date of this AgreementCompany, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public Buyer or private) that is primarily engaged in Competing Business Activities; or (v) acquiring (in a single transaction or series of related transactions) any Person that is, indirectly or has a subsidiary, division, group, franchise or segment that is, engaged in any Competing Business Activity and, following such acquisition, actively engaging in any such Competing Business Activity, so long as directly controlled by the Buyer for the most recent fiscal year ended prior to the date of such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personat least one year.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 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 1 contract
Samples: Membership Interest Purchase Agreement (Tower Tech Holdings Inc.)
Non-Competition; Non-Solicitation. CERTAIN MATERIAL (INDICATED BY AN ASTERISK) HAS BEEN OMITTED FROM THIS DOCUMENT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(a) Subject Prior to the [****************] of the Closing Date, the Sellers shall not, directly or indirectly, through any affiliate thereof (i) engage in, carry on, participate in or have any interest in, whether alone or in conjunction with any Person, or as a holder of an equity or debt interest of any Person, or as a principal, agent or otherwise, including, entering into a joint venture, alliance or other agreement with any Person, any business competing with the Business as conducted on the Closing Date by the Sellers in [*********************]; (ii) assist others in engaging in any business competing with the Business in any manner described in the foregoing clause (i); or (iii) induce any supplier, customer or other Person doing business with Purchaser to terminate its relationship with Purchaser (collectively, the “Competing Services”).
(b) Nothing in this Section 5.3 shall be deemed to prohibit Sellers or any of their affiliates from doing any of the following:
(i) owning, directly or indirectly, less than [******] of any class of equity securities or equivalent equity ownership interests issued by a publicly-traded Person directly or indirectly engaged in any Competing Services;
(ii) owning, directly or indirectly, any class of equity securities or equivalent equity ownership interests in [**************];
(iii) acquiring a business (whether by purchase, merger or other combination) within [********] after the Closing Date, a component of which is engaged in any Competing Services, and operating such Competing Services, so long as Sellers or their affiliate dispose of the Competing Services component of such business or ceases to operate such Competing Services component of such business within [*********] following the date of such acquisition (or such longer period required to obtain any approvals or consents that may be required by applicable Laws);
(iv) completing any contracts which constitute a part of the Excluded Assets;
(v) performing Sellers’ obligations under this Agreement or any other agreement executed in connection herewith;
(vi) allowing employees of Sellers or their affiliates to speak at professional association seminars, trade shows or the like;
(vii) providing Competing Services to Persons that are ancillary to other services provided by Sellers or any of their affiliates (the “Ancillary Competing Services”); provided that, the Sellers and their affiliates may not provide such Ancillary Competing Services directly to any Persons; provided further, that the Sellers and their affiliates shall have the right to subcontract such Ancillary Competing Services to another Person (other than any such Seller or any of their affiliates);
(viii) allowing any affiliate of Sellers to provide training to its employees; CERTAIN MATERIAL (INDICATED BY AN ASTERISK) HAS BEEN OMITTED FROM THIS DOCUMENT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(ix) allowing Xxxx Capital, Inc. to manage or advise (either on a standalone basis or in conjunction with one or more entities) private equity, venture capital, publicly traded, or privately held funds that may be engaged in or engage in any Competing Services, or allowing The Xxxx Group Inc. or its affiliates to own no more than one quarter of such funds; The parties acknowledge that the Purchaser is a potential supplier of Ancillary Competing Services and that the Sellers and their affiliates are required to subcontract to another Person pursuant to Section 7.5(b)5.3(b)(vii) above. From time to time prior to the [**************] of the Closing Date, Xxxx E&I agrees to make introductions to key personnel of the Sellers and their affiliates that may require Ancillary Competing Services and to reasonably assist the Purchaser in the Purchaser’s efforts to supply such Ancillary Competing Services to the Sellers and their affiliates.
(c) Anything contained herein to the contrary notwithstanding, in no event shall the restrictions set forth in this Section 5.3 be deemed to restrict or be applicable to any Person that is not an affiliate of any of the Sellers who acquires (by merger or otherwise) substantially all of the stock or assets of The Xxxx Group Inc. and/or its subsidiaries; provided, however, that if following such acquisition, to the extent and only for so long as such Person does not integrate The Xxxx Group Inc. into its businesses and continues to operate The Xxxx Group Inc. and its subsidiaries as a separate and distinct business in all material respects, then the restrictions set forth in Section 5.3 shall continue to apply to The Xxxx Group Inc. and its subsidiaries but shall not impair or restrict the acquiring Person or its other affiliates.
(d) Prior to the [**************] of the Closing Date, the Sellers shall not solicit for employment any Designated Employee (as such term is defined below in Section 5.5) that remains an employee of Purchaser at the time of or within the [**************] prior to such solicitation by the Sellers or any of their affiliates. Notwithstanding anything to the contrary in this Agreement, the covenants contained this clause (d) will not be deemed to have been breached as to any such person who responds to a public solicitation of employees in a newspaper, trade magazine or similar publication that is not addressed specifically to any Designated Employee.
(e) The Sellers acknowledge that the restrictions, prohibitions and other provisions of this Section 5.3 are reasonable, fair and equitable in scope, terms and duration, are necessary to protect the legitimate business interests of Purchaser, and are a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere in the world, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
(ii) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Person.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 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.
(f) It is the desire and intent of the parties to this Agreement constitute goodthat the provisions of this Section 5.3 shall be enforced to the fullest extent permissible under applicable Law and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of this Section 5.3 shall be adjudicated to be invalid or unenforceable, such provision shall be deemed amended to delete or modify (including to limit or reduce its duration, geographical scope, activity or subject) the portion adjudicated to be invalid or unenforceable, such deletion or modification to apply only with respect to the CERTAIN MATERIAL (INDICATED BY AN ASTERISK) HAS BEEN OMITTED FROM THIS DOCUMENT PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. operation of such provision of this Section 5.3 in the particular jurisdiction in which such adjudication is made and to be made only to the extent necessary to cause the provision as amended to be valid and binding consideration for Seller’s obligations, covenants enforceable.
(g) The Sellers acknowledge and agreements contained in understand that the provisions of this Section 7.5 5.3 are of a special and (iv) unique nature, the loss of which cannot be accurately compensated for in damages by an action at law and that the breach of the provisions of this Section 5.3 would cause Purchaser would not have entered into this Agreement irreparable harm. In the event of a breach or threatened breach by the Sellers or any of their affiliates of the transactions contemplated hereby without the restrictions contained in provisions of this Section 7.5 and 5.3, Purchaser shall be entitled to seek an injunction restraining it from such breach. Nothing herein contained shall be construed as prohibiting Purchaser from pursuing any other remedies available for any breach or threatened breach of this Section 7.5 being in full force 5.3, and effect and binding and enforceable covenants the pursuit of Seller. If a court of competent jurisdiction finds that the time period of an injunction or 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 other remedy shall not 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 an exclusive election of such restrictive covenanta remedy.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFor a period of six (6) years commencing on the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, Seller each Party shall not, and shall cause not permit any of its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakesexcept as expressly contemplated by the MOU, manages, participates in, carries on (i) engage in or is engaged in, any Competing Business Activities anywhere assist others in engaging in the worldRestricted 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; andor (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between the Windset Group and customers or suppliers of the Windset Group. Notwithstanding the foregoing, Affiliates of the Corporation may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if such affiliate 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.
(iib) (A) for For a period of three (3) years following commencing on the Closing DateDate (the “Non- Solicitation Period”), soliciteach Party shall not, enticeand shall not permit any of its Affiliates to, encourage directly or influenceindirectly, hire or solicit any employee of the Windset Group or the Investor, as applicable, or attempt encourage any such employee to solicitleave such employment or hire any such employee who has left such employment, enticeexcept pursuant to a general solicitation which is not directed specifically to any such employees; provided, encourage that nothing in this Section 5.03(b) shall prevent the Windset Group, the Investor or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) Notwithstanding Section 7.5(a)(ii), Sellers and their its respective Affiliates shall not be prohibited from or restricted in any way with respect to: hiring (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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or employee whose employment has been terminated by Purchaserthe Windset Group or the Investor, the Acquired Companies as applicable, or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iiiii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of after 180 days from the date of this Agreementtermination of employment, including any employee whose employment has been terminated by the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personemployee.
(c) Seller expressly During the Non-Solicitation Period, each Party 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 Windset Group or potential clients or customers of the Windset Group for purposes of diverting their business or services from the Windset Group.
(d) Each Party acknowledges that (i) each of the restrictions contained in this Section 7.5 5.03 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, the legitimate interests of the Investor and value of, the Acquired Companies’ businesses (including Corporation and constitute a material inducement to the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) Parties to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service, or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 5.03 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(b)For a period of three years following the Closing, as a material inducement to Purchaser to enter into this Agreement, Seller the MBS Parties shall not, and shall cause its their Affiliates not to, directly or indirectly (whether by itself, through an Affiliate any Person or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):contractual arrangement:
(i) for a period engage in any business anywhere in the United States that involves the retailing, wholesaling or other distribution of four materials, in any and all forms and media whether now known or hereafter invented, including textbooks, online course delivery, digital services and Software to the Persons involved in delivering or receiving primary, secondary or post-secondary instruction or the services related thereto (4) years following the Closing Date“Business”), undertakeor perform management, manageexecutive or supervisory functions with respect to, own, operate, join, control, render financial assistance to, receive any economic benefit from, exert any influence upon, participate in, carry on render services or be engaged inadvice to, or in allow any manner ownof its officers or employees to be connected as an officer, operateemployee, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere in the world, including as a partner, shareholder, member, employeestockholder, principalconsultant or otherwise with, agentany business or Person that competes in whole or in part with the Business; provided, trustee however, that for purposes of this Section 5.4, (i) ownership of securities having no more than one percent of the outstanding voting power of any competitors which are listed on any national securities exchange shall not be deemed to be a violation of this Section 5.4 as long as the person owning such securities has no other connection or consultantrelationship with such competitor and (ii) ownership of Buyer common stock or BKS common stock by Xxxxxxx Xxxxxx and his Affiliates, as well as serving as an executive officer, director, employee or consultant of BKS and any of its Subsidiaries, shall not be deemed to be a violation of this Section 5.4; andor
(ii) solicit, recruit or hire any person who at any time on or after the date of this Agreement is a Company Group Employee (as hereinafter defined); provided, that the foregoing shall not prohibit (A) for a period general solicitation to the public of three (3) years following the Closing Date, solicit, entice, encourage general advertising or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any similar methods of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 solicitation by search firms not specifically directed at Company Group Employees or (B) the MBS Parties or any of their Affiliates from soliciting, recruiting or hiring any Company Group Employee who has ceased to be employed or retained by the Company, the Buyer or any of their respective Affiliates for a period at least 9 months. For purposes of two (2) years following this Section 5.4, “Company Group Employees” means, collectively, officers, directors and employees of the Closing DateCompany, solicitthe Buyer and their respective Affiliates and persons acting under any management, enticeservice, encourage consulting, distribution, dealer or influence, or attempt similar contract with respect to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise leave the employ of Purchaser Company or the Acquired Companies or otherwise hire, employ, engage or contract with any Transferred Employee to perform services other than for the benefit of Purchaser or the Acquired CompaniesBuyer.
(b) Notwithstanding The MBS Parties acknowledge that the covenants of the MBS Parties set forth in this Section 7.5(a)(ii)5.4 are an essential element of this Agreement and that any breach by the MBS Parties of any provision of this Section 5.4 will result in irreparable injury to the Buyer. The MBS Parties acknowledge that in the event of such a breach, 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, magazinesaddition to all other remedies available at law, the Internet Buyer shall be entitled to equitable relief, including injunctive relief. The MBS Parties have independently consulted with their counsel and other media not specifically directed at individual Transferred Employees or hiring any after such Transferred Employees as a result thereof; (ii) hiring or soliciting any Transferred Employee who has terminated employment with Purchaser, consultation agree that the Acquired Companies or any Affiliate thereof, at least nine (9) months prior covenants set forth in this Section 5.4 are reasonable and proper to protect the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as legitimate interest of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such PersonBuyer.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 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 determines that the time period of any character, duration or geographical scope of the foregoing covenants provisions of this Section 5.4 are unreasonable, it is too lengthy or the geographic coverage or scope of any intention and the agreement of the parties that these provisions shall be construed by the court in such a manner as to impose only those restrictions on the MBS Parties’ conduct that are reasonable in light of the circumstances and as are necessary to assure to the Buyer the benefits of this Agreement. If, in any judicial proceeding, a court shall refuse to enforce all of the separate covenants of this Section 5.4 because taken together they are more extensive than necessary to assure to the Buyer the intended benefits of this Agreement, it is too broadexpressly understood and agreed by the parties that the provisions hereof that, if eliminated, would permit the restrictive time period will remaining separate provisions to be enforced in such proceeding, shall be deemed to be eliminated, for 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 purposes of such restrictive covenantproceeding, from this Agreement.
Appears in 1 contract
Samples: Purchase Agreement (Barnes & Noble Education, Inc.)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFor a period of five (5) years commencing on the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause not permit any of its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on (i) engage in or is engaged in, any Competing Business Activities anywhere assist others in engaging in the worldRestricted Business in the United States of America and its territories (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; andor (iii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Acquired Business (including any existing or former client or customer of Seller and any Person that becomes a client or customer of the Acquired Business after the Closing), or any other Person who has a material business relationship with the Acquired 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 2% or more of any class of securities of such Person.
(iib) (ADuring 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 the Parties pursuant to Section 4.5(a) for a period of three (3) years following or is or was employed in the Closing Date, solicit, entice, encourage or influenceAcquired Business during the Restricted Period, or attempt encourage any such employee to solicitleave such employment or hire any such employee who has left such employment, enticeexcept pursuant to a general solicitation which is not directed specifically to any such employees; provided, encourage that nothing in this Section 4.6(b) shall prevent Seller or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(Aits Affiliates from hiring (i) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 after two (2) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) 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 the date of first contact by Seller or its Affiliates with such Transferred Employeetermination of employment, or if any employee whose employment has been terminated by Purchaser, the Acquired Companies Buyer or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iiiii) continuing to engage in any business after two (other than the Business2) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of years from the date of this Agreementtermination of employment, including any employee whose employment has been terminated by the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personemployee.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 7.5 4.5(b) 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, the legitimate interests of Buyer and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 4.5(b) 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 4.5(b) and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 1 contract
Non-Competition; Non-Solicitation. NON-INTERFERENCE. Because Xxxxxx acknowledges and agrees that he has and will continue to have access to confidential and trade secret information of the Company, the following restrictive covenant is necessary to protect the interests and continued success of the Company. Except as otherwise expressly consented to in writing by the Company, during the time period that begins on the commencement of the Term of this Agreement and ends twelve (a12) Subject to Section 7.5(bmonths from the date of termination of this Agreement (the "Restricted Period"), as a material inducement to Purchaser to enter into this Agreement, Seller Xxxxxx shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakesacting as an employee, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere in the world, including as a partnerowner, shareholder, memberpartner, employeejoint venturer, principalofficer, director, agent, trustee salesperson, consultant, advisor, investor or consultant; andprincipal of any corporation or other business entity:
(iia) (A) for a period of three (3) years following the Closing Dateengage, solicit, entice, encourage in any state or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) territory of the Seller Disclosure Schedule United States of America where the Company is actively doing business (collectively, the “Senior Management determined as of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any member commencement of the Senior Management of Term), in direct or indirect competition with the Business to perform services other than for business conducted by the benefit of Purchaser Company; specifically, eServices or the Acquired Companies or (B) for a period of two (2) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.knowledge management; or
(b) Notwithstanding Section 7.5(a)(ii)request or otherwise attempt to induce or influence, Sellers and directly or indirectly, any customer or supplier, or prospective customer or supplier, of the Company, or other persons sharing a business relationship with the Company, to cancel, limit or postpone their Affiliates shall not business with the Company, or otherwise take action which might 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 the date material disadvantage of first contact by Seller the Company; or
(c) hire or its Affiliates with such Transferred Employeesolicit for employment or other business relationship, or whose employment has been terminated by Purchaserinduce or actively attempt to influence, the Acquired Companies any employee, officer, director or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any other business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as associate of the date of Company to terminate his or her employment or discontinue such person's consultant, contractor or other business association with the Company.
(d) Nothing in this Agreementsection, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as whether express or implied, shall prevent Xxxxxx from being a passive investment holder or not more than five one percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (151%) of the total consolidated revenues outstanding stock of such Person.
(c) Seller expressly acknowledges that (i) each either a publicly held company under Section 12 of the Securities Exchange Act of 1934, as amended, or any privately held company. If Xxxxxx violates any of the restrictions contained in this Section 7.5 are reasonable in all respects (including with respect section, the Restricted Period shall be increased by the period of time from the commencement of any such violation until the time such violation shall be cured by Xxxxxx to subject matter, geographical scope and time period) and such restrictions are necessary to protect Purchaser’s interest inthe satisfaction of the Company, and value ofthe Company may withhold any and all payments otherwise due and owing to Xxxxxx under this Agreement, the Acquired Companies’ businesses (including the goodwill inherent therein)if any, (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 covenantother than Base Salary.
Appears in 1 contract
Samples: Chairman Agreement (Serviceware Technologies Inc/ Pa)
Non-Competition; Non-Solicitation. (a) Subject For a period commencing on the Closing Date and ending upon the earlier to Section 7.5(boccur of (i) the Company’s acquisition of a new line of business or (ii) the two-year anniversary of the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, each Seller shall not, and shall cause not permit any of its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on (A) engage in or is engaged in, any Competing Business Activities anywhere assist others in engaging in the worldRestricted Business; (B) 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; and
(ii) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 (BC) for a period of two (2) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) Notwithstanding Section 7.5(a)(ii), Sellers and their Affiliates shall not be prohibited from or restricted intentionally interfere in any way material respect with respect to: the business relationships (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 whether formed prior to the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of after the date of this Agreement) between the Company and distributors, including the operations set forth on Schedule 7.5(b)(iii) customers or suppliers of the Company, as the case may be. Notwithstanding the foregoing, each Seller Disclosure Schedule; (iv) holding may own, directly or indirectly, solely as a passive investment not more than five percent (5%) of the outstanding voting an investment, securities of any company (whether public or private) that Person traded on any national securities exchange if the Seller is primarily engaged in Competing Business Activities; or (v) acquiring (in not a single transaction or series of related transactions) any controlling Person that isof, or has a subsidiarymember of a group which controls, divisionsuch Person and does not, groupdirectly or indirectly, franchise own 5% or segment that is, engaged in more of 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 class of such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues 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 general solicitation which is not directed specifically to any such employees.
(c) During the Restricted Period, each Seller expressly 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 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 (iwithout any requirement to post bond).
(e) each of Each Seller acknowledges that the restrictions contained in this Section 7.5 5.06 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, the legitimate interests of the Buyers and value of, constitute a material inducement to the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) Buyers to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service, or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 5.06 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFor a period of 3 years commencing on the Closing Date (the "Restricted Period"), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on (i) engage in or is engaged in, any Competing Business Activities anywhere assist others in engaging in the worldBusiness 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; and
or (iiiii) (A) for a period of three (3) years following the Closing Datecause, solicitinduce or encourage any material actual client, enticecustomer, encourage supplier or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any member of the Senior Management licensor of the Business (including any existing or former client or customer of Seller and any Person that, to perform services other than for Seller's Knowledge, becomes a client or customer of the benefit of Purchaser or Business during the Acquired Companies or (B) for a period of two (2) years following the Closing Date, solicit, entice, encourage or influenceRestricted Period), or attempt any other Person who has a material business relationship with the Business as of the date of this Agreement or, to solicitSeller's Knowledge, enticeat any time during the Restricted Period, encourage to terminate or influencemodify any such actual 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 attempt to solicita member of a group which controls, enticesuch Person and does not, encourage directly or influenceindirectly, own 5% or more of any Transferred Employee to resign or otherwise leave the employ class of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any Transferred Employee to perform services other than for the benefit securities of Purchaser or the Acquired Companiessuch Person.
(b) Notwithstanding Section 7.5(a)(ii)During the Restricted Period, Sellers and their Affiliates Seller shall not be prohibited directly or indirectly, 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 prevent Seller or any of its Affiliates from or restricted in any way with respect to: hiring (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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or employee whose employment has been terminated by Purchaser, the Acquired Companies Buyer or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iiiii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of after 180 days from the date of this Agreementtermination of employment, including any employee whose employment has been terminated by the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personemployee.
(c) Seller expressly acknowledges that a breach or threatened breach of this Section 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 (iwithout any requirement to post bond).
(d) each of Seller acknowledges that the restrictions contained in this Section 7.5 6.07 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, the legitimate interests of Buyer and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 6.07 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing 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 too lengthy not similar to, or the geographic coverage or scope of any of the covenants is too broaddoes not reference, 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 name SharpSpring in any breach of such restrictive covenantmanner.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(b)Each Company and Shareholder agrees that, as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four five (45) years following from and after the Closing DateDate (the “Restrictive Period”), undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thateach Company and Shareholder shall not, directly or indirectly, undertakesown, managesmanage, participates inoperate, carries on control or is engaged inparticipate in the ownership, management, operation or control of, or provide any financing to, any Competing Business Activities Person (other than the 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, including as a partner, shareholder, member, employee, principal, agent, trustee except that each such Company or consultant; and
(ii) (A) for a period of Shareholder may hold less than three percent (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A%) of the Seller Disclosure Schedule (collectively, the “Senior Management capital stock of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companiessuch publicly-traded Person.
(b) Notwithstanding Section 7.5(a)(ii)Each Company and Shareholder shall not, Sellers during the Restrictive Period, take any 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 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 Shareholder will refer all inquiries relating to the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, business to the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than Buyer and the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as officers of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such PersonCompanies.
(c) Seller expressly acknowledges Each Company and Shareholder agrees that (i) each 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 restrictions Parent, the Buyer or the Companies, or, directly or indirectly solicit, hire or attempt to induce any of them to leave the employ of the Parent, the Buyer or the 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, employees, representatives or agents of the Parent, the Buyer or the Companies.
(d) Each Company and Shareholder acknowledges and agrees that the covenants set forth in this Section 10.3 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 7.5 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.
(e) Each Company and Shareholder acknowledges and agrees that all of the restrictions, covenants and agreements in Section 10.3 hereof are appropriate, reasonable in all respects and valid (including with respect to subject matter, geographical geographic scope and time periodduration) and such restrictions are fully 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 protection of such value, (iii) the transactions contemplated by this Agreement constitute good, valid legitimate interests of the Buyer and binding consideration for Seller’s obligations, covenants and agreements the Parent. If any provision contained in this Section 7.5 and (iv) Purchaser would 10.3 shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not have entered into affect any other provisions of this Agreement Section 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 transactions contemplated hereby without 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 restrictions contained in this Section 7.5 and this Section 7.5 being in full force and effect and binding and extent such provision would be valid or enforceable covenants of Seller. If under applicable Law, a court of competent jurisdiction finds that shall construe and interpret or reform this Section 10.3 to provide for a covenant having the maximum enforceable geographic area, 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 other provisions (not greater than those contained herein) as shall be extended during the term of any breach of valid and enforceable under such restrictive covenantapplicable Law.
Appears in 1 contract
Samples: Asset Purchase Agreement (Meta Financial Group Inc)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(b), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a The Executive agrees that (A) during the term of his employment with the Company and, (B) during the 12-month period of four (4) years following the Closing Datetermination of his employment with the Company for any reason (the “Non-Competition Period”) within the Restricted Territory, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thatthe Executive shall not, directly or indirectly, undertakes, manages, participates engage or participate in, carries on prepare or is engaged inset up, assist or have any Competing Business Activities anywhere interest in the worldany person, including partnership, corporation, firm, association or other business organization, entity or enterprise, whether as a partner, shareholder, memberan officer, employee, principaldirector, agentpartner, trustee stockholder, consultant or consultant; andotherwise, that engages in the Company’s Business. Notwithstanding the foregoing, (x) the Executive shall not be precluded from purchasing or owning, directly or beneficially, as a passive investment, two percent (2%) or less of any class of publicly traded securities if he does not actively participate in or control, directly or indirectly, any investment or other decisions with respect to such entity, and (y) if the 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 termination 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) During the Non-Competition Period, the Executive shall not, directly or indirectly:
(A) for a period of three (3) years following the Closing Dateoffer to hire, solicitdivert, enticeentice away, encourage solicit or influencein any other manner persuade, or attempt to do 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 was, at any time within six months prior to the Solicitation, an officer, employee, agent or consultant of the Company or any Company Managed Fund to work for a third party engaged in the Company’s Business or to engage in any of the activities hereby prohibited with respect to the Executive under this subparagraph 7(b)(ii);
(B) solicit, enticedivert, encourage entice away or influencein any other manner persuade, or attempt to solicit, entice, encourage or influence, do any of individuals listed the foregoing, on Schedule 7.5(a)(ii)(A(1) any actual or prospective customer of or investor in the Seller Disclosure Schedule (collectively, Company or any Company Managed Fund to become a customer of or investor in any third party engaged in the “Senior Management of the Business”) to resign Company’s Business or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 any customer or investor to cease doing business with the Closing Date, solicit, entice, encourage Company or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.Company Managed Fund; or
(bC) Notwithstanding Section 7.5(a)(ii), Sellers and their Affiliates shall not be prohibited from make any statements or restricted perform any acts intended to advance the interest of any person engaged in or proposing to engage in the Company’s Business in any way with respect to: (i) advertising job openings by use that is intended to injure the interests 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 Company or any Affiliate thereof, at least nine (9) months prior to the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such PersonCompany Managed Fund.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 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 1 contract
Non-Competition; Non-Solicitation. (a) Subject Each Seller acknowledges the highly competitive nature of the business of the Companies. In connection with the sale of all of its Securities, including the Companies’ goodwill, in exchange for good and valuable consideration offered to Section 7.5(bsuch Seller for its Securities, for a period of five (5) years commencing on the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreementeach of the Sellers (collectively, Seller the “Non-Compete Parties”) agrees that he or she shall not, and shall cause its not permit any of his or her Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakeswhether acting alone or as a partner, managesshareholder, participates inmember joint venture, carries on equity or is engaged insecurity holder, officer, director, employee, principal, agent, trustee, consultant, independent contractor or lender (other than in connection with providing services to any Competing Business Activities anywhere Company or other Affiliate of Buyer, including any entity acquired by any Company or Buyer or its Affiliates after Closing, in each case, at and in accordance with the request of such Company), (i) engage in or assist others in engaging in the worldRestricted 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 trustee, consultant, independent contractor or consultantlender; and
(ii) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage intentionally interfere in any material respect with the business relationships (other than the Business) that Seller whether formed prior to or any of its Affiliates (other than the Acquired Companies) engages in as of after the date of this Agreement) between any Company and any customers or suppliers of such Company. Notwithstanding the foregoing, including the operations set forth on Schedule 7.5(b)(iii) each of the Seller Disclosure Schedule; (iv) holding Non-Compete Parties and their Affiliates may own, directly or indirectly, solely as a passive investment not more than five percent (5%) of the outstanding voting an investment, securities of any company (whether public Person traded on any national securities exchange only if such Non-Compete Party or private) that Affiliate is primarily engaged in Competing Business Activities; or (v) acquiring (in not a single transaction or series of related transactions) any controlling Person that isof, or has a subsidiarymember of a group which controls, divisionsuch Person and does not, groupdirectly or indirectly, franchise own 1% or segment that is, engaged in more of 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 class of such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues securities of such Person.
(b) 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 another, solicit for employment any 31 302010047 v18
(c) Seller expressly acknowledges 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) each was on the Closing Date a client or customer of the restrictions contained in this Section 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)any Company, (ii) Seller is primarily responsible for the creation of such valuea Material Customer, (iii) to the Knowledge of such Seller is, on the Closing Date, or has been within one year prior to that time, a client or customer of any Company or potential client or customer of any Company, or (iv) to the Knowledge of such Seller is, on the Closing Date, or has been within one year prior to that time, actively solicited by any Company to become a client or customer of any Company, with the intent of diverting their business or services from any 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 any Company.
(d) The Non-Compete Parties acknowledge and agree (i) that the provisions of, and Sellers’ obligations under, Section 6.01 and Section
6.02 are reasonable in scope and necessary for the protection of 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 constitute goodAgreement, valid and binding consideration for Seller’s obligations, covenants and agreements contained (ii) that any of the Non-Compete Parties’ breach or threatened breach of any provision or obligation in this Section 7.5 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 (iviii) Purchaser would not have entered into this Agreement or 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 the transactions contemplated hereby without the restrictions contained in this Section 7.5 such breach, equitable relief, including a temporary restraining order, an injunction, specific performance and this Section 7.5 being in full force and effect and binding and enforceable covenants of Seller. If any other relief that may be available from a court of competent jurisdiction finds jurisdiction, to prevent and/or remedy such a breach or 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, Buyer’s right to receive monetary damages shall not be a bar, or be interposed as a defense, to the granting of such relief. 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. Each Non-Compete Party agrees that the time period provisions 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 this Section 6.01 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.Section
Appears in 1 contract
Samples: Securities Purchase Agreement (U.S. Concrete, Inc.)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bDuring the five (5) year period immediately following the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, Seller shall each Restricted Party will not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
: (i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere in the worldRestricted Territory, including whether as a owner, partner, shareholderstockholder, member, employee, principalconsultant, agent, trustee employee or consultant; and
co-venturer, engage (ii) or actively prepare to engage), render services for or invest in any Person that is engaged in the business of operating (A) for a period of three managed service organization providing administrative support services to physicians, (3B) years following the Closing Date, solicit, entice, encourage primary care physician clinics or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A(C) of the Seller Disclosure Schedule a pharmacy (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire); provided, employhowever, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) Notwithstanding Section 7.5(a)(ii), Sellers and their Affiliates that no Restricted Party shall not be prohibited from or restricted in any way with respect to: (ix) 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 owning up to the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting equity securities of any a company (whether public or private) engaged in the Business that is primarily publicly traded on a national securities exchange or in the over the counter market so long as such Person has no active participation in connection with the business of such company, (y) acting as an employee of the Buyers or their respective Affiliates (including, after the Closing, University Pharmacy) or (z) owning the Equity Consideration Shares; (ii) directly or indirectly, recruit or attempt to recruit any person that is employed or engaged by any Buyer or its Affiliates (including, after the Closing, University Pharmacy) or otherwise solicit, induce or influence, or attempt to solicit, induce or influence, any such person, in Competing Business Activitieseach case, to leave employment or engagement with any Buyer or its Affiliates (including, after the Closing, University Pharmacy); provided, however, that neither (x) a general solicitation not specifically targeted at the employees of any Buyer or its Affiliates (including, after the Closing, University Pharmacy), nor (y) soliciting, inducing, hiring or influencing any family member of such Restricted Party, shall be a violation of this clause (ii); or (viii) acquiring (in a single transaction directly or series of related transactions) any Person that isindirectly, solicit or encourage, or has attempt to solicit or encourage, any referral source, customer, supplier, patient, provider client, integration partner or vendor of any Buyer or their respective Affiliates (including, after the Closing, University Pharmacy) to terminate or otherwise modify adversely its business relationship with any Buyer or their respective Affiliates (including, after the Closing, University Pharmacy); provided, however, that performing the services set forth in the TSA by a subsidiary, division, group, franchise Restricted Party or segment its Affiliates that is, engaged in 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 is a party to the date TSA shall not be a violation of such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Person.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 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 therein6.4(a), (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 1 contract
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(b), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for For a period of four two (42) years following commencing on the Closing DateDate (the “Restricted Period”), undertakeneither Seller nor any Member shall, manage, participate in, carry on or be nor shall Seller nor any Member permit any of its Affiliates that is engaged in, or in any manner own, operate, or, with respect to any Competing the Restricted Business Activities, advise, assist or consult with, or have an interest in, any other Person thatas of the Closing Date to, directly or indirectly, undertakes, manages, participates in, carries on (i) engage in or is engaged in, any Competing Business Activities anywhere assist others in engaging in the worldRestricted Business; (ii) have an interest in any Person that engages in the Restricted Business, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
or (iiiii) (A) for a period cause, induce or encourage any material actual or prospective client as of three (3) years following the Closing Date, solicitcustomer, entice, encourage supplier or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) licensor of the Seller Disclosure Schedule Company (collectively, the “Senior Management including any existing client or customer of the Business”) to resign Company and clients or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any member customers of the Senior Management of Company during the Business to perform services other than for the benefit of Purchaser or the Acquired Companies or twelve (B12) for a period of two (2) years following months preceding the Closing Date, solicit, entice, encourage and any Person that becomes a client or influencecustomer of the Company after the Closing), or attempt any other Person who has a material business relationship with the Company, to solicitterminate or modify any such actual or prospective relationship. Notwithstanding the foregoing, enticeSeller, encourage any Member, and any of their respective Affiliates may own, directly or influenceindirectly, solely as an investment, securities of any Person traded on any national securities exchange if Seller, or attempt to solicitsuch Member or Affiliate, enticerespectively, encourage is not a controlling Person of, or influencea member of a group which controls, such Person and does not, directly or indirectly, own five percent (5%) or more of any Transferred Employee to resign or otherwise leave the employ class of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any Transferred Employee to perform services other than for the benefit securities of Purchaser or the Acquired Companiessuch Person.
(b) Notwithstanding During the Restricted Period, neither Seller nor any Member shall, nor shall Seller nor any Member permit any of its Affiliates that is engaged in the Restricted Business as of the Closing Date to, directly or indirectly, hire or solicit any person who is or was employed in the Company 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 7.5(a)(ii)5.02(b) shall prevent Seller, Sellers and any Member, or any of their respective Affiliates shall not be prohibited from or restricted in any way with respect to: hiring (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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or employee whose employment has been terminated by Purchaser, Buyer or the Acquired Companies Company or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iiiii) continuing to engage in any business after one hundred eighty (other than the Business180) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of days from the date of this Agreementtermination of employment, including any employee whose employment has been terminated by the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personemployee.
(c) Seller expressly acknowledges and the Members each acknowledge that a breach or threatened breach of this Section 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 or a 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 equitable relief from the breaching Seller or Member, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (iwithout any requirement to post bond).
(d) Seller and the Members each of acknowledge that the restrictions contained in this Section 7.5 5.02 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, the legitimate interests of Buyer and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service, or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 5.02 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Enservco Corp)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFor a period of (2) years commencing on the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, Seller Shareholders shall not, and shall cause its not permit any of their Affiliates not (including BVI NewCo 1) to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on (i) engage in or is engaged in, any Competing Business Activities anywhere assist others in engaging in the worldRestricted 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, shareholdershareholders, member, employee, principal, agent, trustee or consultant; and
(ii) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage intentionally interfere in any material respect with the business relationships (other than the Business) that Seller whether formed prior to or any of its Affiliates (other than the Acquired Companies) engages in as of after the date of this Agreement) between BVI NewCo 2 and its Subsidiaries and customers or suppliers of BVI NewCo 2 and its Subsidiaries. Notwithstanding the foregoing, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding Shareholders may own, directly or indirectly, solely as a passive investment not more than five percent (5%) of the outstanding voting an investment, securities of any company (whether public or private) that is primarily engaged in Competing Business Activities; or (v) acquiring (in Person traded on any national securities exchange if Shareholders are not a single transaction or series of related transactions) any controlling Person that isof, or has a subsidiarymember of a group which controls, divisionsuch Person and does not, groupdirectly or indirectly, franchise own 2% or segment that is, engaged in more of 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 class of such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues securities of such Person.
(b) During the Restricted Period, Shareholders shall not, and shall not permit any of their Affiliates to, directly or indirectly, solicit any employee of BVI NewCo 2 and its Subsidiaries or encourage any such employee to leave such employment, except pursuant to a general solicitation which is not directed specifically to any such employees.
(c) Seller expressly acknowledges During the Restricted Period, Shareholders 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 Company or potential clients or customers of the Company for purposes of diverting their business or services from the Company.
(d) Shareholders acknowledge that a breach or threatened breach of this Section 4.2 would give rise to irreparable harm to Cerberus, 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 Shareholders of any such obligations, Cerberus 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 (i) each of without any requirement to post bond). Shareholders acknowledge that the restrictions contained in this Section 7.5 4.2 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, the legitimate interests of Cerberus and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Cerberus to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 4.2 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service, or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 4.2 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 1 contract
Samples: Stock Purchase Agreement (Cerberus Cyber Sentinel Corp)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFor a period of five (5) years commencing on the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, each Seller and each Owner shall not, and shall cause not permit any of his or its Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on (i) engage in or is engaged in, any Competing Business Activities anywhere assist others in engaging in the worldBusiness (or any aspect, portion or component of the Business) within the Territory (or any portion of the Territory); (ii) have an interest in any Person that engages directly or indirectly in any aspect, portion or component of the Business within the Territory (or any portion thereof the Territory) in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
or (iiiii) intentionally interfere in any material respect with the business relationships (Awhether formed prior to or after the date of this Agreement) for between the Company, the Purchaser or any of their Affiliates, on the one hand, and customers or suppliers of the Company, the Purchaser or any of their Affiliates, on the other hand. Notwithstanding the foregoing, (1) a period Seller or Owner may own, directly or indirectly, solely as an investment, securities of three (3) years following the Closing Date, solicit, entice, encourage any Person traded on any national securities exchange if such Seller or influenceOwner is not a controlling Person of, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any a member of the Senior Management a group which controls, such Person and does not, directly or indirectly, own two percent (2%) or more of the Business to perform services other than for the benefit any class of Purchaser or the Acquired Companies or (B) for a period securities of two such Person, and (2) years each Seller and each Owner may conduct the following business-related activities: general farming activities, but excluding any direct or indirect egg production, processing, sales or marketing and also excluding any leasing of property or improvements to any Persons (other than the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise leave the employ of Purchaser or its Affiliates) engaged in the Acquired Companies or otherwise hire, employ, engage or contract with any Transferred Employee to perform services other than for the benefit of Purchaser or the Acquired CompaniesBusiness.
(b) Notwithstanding Section 7.5(a)(ii)During the Restricted Period, Sellers each Seller and their Affiliates each Owner shall not, and shall not be prohibited permit any of his or 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 general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 6.8(b) shall prevent a Seller or an Owner or any of its or his Affiliates from or restricted in any way with respect to: hiring (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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or employee whose employment has been terminated by Purchaser, the Acquired Companies Company or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller the Purchaser or its Affiliates prior thereto; (iiiii) continuing to engage in any business after one hundred eighty (other than the Business180) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of days from the date of this Agreementtermination of employment, including any employee whose employment has been terminated by the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personemployee.
(c) During the Restricted Period, each Seller expressly and each Owner shall not, and shall not permit any of its or his Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of the Company, the Purchaser or any of their Affiliates or potential clients or customers of the Company, the Purchaser or any of their Affiliates for purposes of diverting their business or services from the Company, the Purchaser or any of their Affiliates.
(d) Each Seller and each Owner acknowledges that a breach or threatened breach of this Section 6.8 would give rise to irreparable harm to the 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 such Seller or Owner 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 (iwithout any requirement to post bond).
(e) Each Seller and each of Owner acknowledges that the restrictions contained in this Section 7.5 6.8 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, the legitimate interests of the Purchaser and value of, constitute a material inducement to the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) Purchaser to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements the Ancillary Agreements. In the event that any covenant contained in this Section 7.5 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service, or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 6.8 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Post Holdings, Inc.)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bEmployee hereby agrees and covenants that commencing as of the date hereof and for a period of eighteen (18) months following the termination of Employee’s employment with Employer (the “Limited Period”), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates Employee will not to, directly or indirectly (whether by itselfas an owner, through an Affiliate or in partnership or conjunction with or forprincipal, or as a agent, stockholder, member, ownerpartner, trustee, venturer, lender or other investor, director, officer, employee, consultant or through the agency of any corporation, limited liability company, partnership, association or agent ofor otherwise) engage in any business, enterprise or operation listed on Exhibit C attached to this Agreement, including the parents, subsidiaries and affiliates of such entities. Ownership of not more than 1% of the outstanding securities of any other Person):class of any entity that are listed on a national securities exchange or traded in the over-the-counter market shall not be considered a breach of this Section 5(a).
(ib) Employee agrees and covenants that for a period the Limited Period, Employee will not (without first obtaining the written permission of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thatPresident of Employer), directly or indirectly, undertakessolicit any business of any type conducted by Employer or any subsidiary thereof, managesduring the period of Employee’s employment with Employer, participates infrom any person or entity which was a client or customer of Employer or any subsidiary thereof where Employee worked and/or for a client or customer for which Employee was responsible for, carries on directly or is engaged inindirectly, any Competing Business Activities anywhere in terms of management and supervision activities, or in the worldcase of prospective customers and clients of Employer or any subsidiary thereof with whom Employee (or employees under Employee’s supervision) solicited business and/or submitted proposals, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
(ii) (A) for a during the period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage 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 commencing two (2) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companies.
(b) 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 the date of first contact by Seller or its Affiliates the termination of Employee’s employment with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such PersonEmployer.
(c) Seller expressly acknowledges Employee agrees and covenants that for the Limited Period, Employee will not (iwithout first obtaining the written permission of President of Employer) each directly or indirectly, recruit and/or solicit for employment or otherwise, or induce or seek to cause any person to terminate his or her employment or other engagement with Employer to work on behalf of the restrictions a client or customer of Employer and/or any prospective client or customer of Employer or any subsidiary thereof or hire any person who was employed by Employer or any subsidiary thereof within twelve (12) months prior to such proposed hiring.
(d) The provisions contained in this Section 7.5 are reasonable in all respects (including with respect to subject matter5 shall survive termination of this Agreement, geographical scope as provided herein. The agreements 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 5 are essential to protect the Employer and (iv) Purchaser would not have entered the goodwill of the Employer’ business, and are a condition precedent to the Employer entering into this Agreement or any of and paying the transactions contemplated hereby without the restrictions contained amounts described 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 covenant6(c) below.
Appears in 1 contract
Samples: Employment Agreement (PSAV, Inc.)
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFor a period of five (5) years commencing on the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, Seller shall not, and shall cause not permit any of its Affiliates not affiliates to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on (i) engage in or is engaged in, assist others in engaging in a business similar to the Business (“Restricted Business”) in North America (the “Territory”); (ii) have an interest in any Competing Business Activities anywhere entity that engages directly or indirectly in the worldRestricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; and
or (iiiii) (A) for a period of three (3) years following the Closing Datecause, solicitinduce or encourage any material actual or prospective client, enticecustomer, encourage supplier or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any member of the Senior Management licensor of the Business to perform services other than for (including any existing or former client or customer of Seller and any person or entity that becomes a client or customer of the benefit of Purchaser or Business after the Acquired Companies or (B) for a period of two (2) years following the Closing Date, solicit, entice, encourage or influenceClosing), or attempt any other person or entity who has a material business relationship with the Business, to solicitterminate or modify any such actual or prospective relationship. Notwithstanding the foregoing, entice(Seller may own, encourage directly or influenceindirectly, solely as an investment, securities of any entity traded on any national securities exchange if Seller is not a controlling person of, or attempt to solicita member of a group which controls, enticesuch person and does not, encourage directly or influenceindirectly, own 5% or more of any Transferred Employee to resign or otherwise leave the employ class of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any Transferred Employee to perform services other than for the benefit securities of Purchaser or the Acquired Companiessuch entity.
(b) Notwithstanding Section 7.5(a)(ii)During the Restricted Period, Sellers Seller shall not, 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or permit any of its Affiliates (other than affiliates to, directly or indirectly, hire or solicit any person who is offered employment by Buyer or is or was employed in the Acquired Companies) engages in as of Business during the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) that is primarily engaged in Competing Business Activities; or (v) acquiring (in a single transaction or series of related transactions) any Person that isRestricted Period, or has a subsidiary, division, group, franchise or segment that is, engaged in any Competing Business Activity and, following such acquisition, actively engaging in encourage any such Competing Business Activityemployee to leave such employment or hire any such employee who has left such employment, so long as for the most recent fiscal year ended prior except pursuant to the date of a general solicitation which is not directed specifically to any such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Personemployees.
(c) Seller expressly acknowledges that a breach or threatened breach of this Section 6.5 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 (iwithout any requirement to post bond).
(d) each of Seller acknowledges that the restrictions contained in this Section 7.5 6.5 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, the legitimate interests of Buyer and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 6.5 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 6.5 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 1 contract
Samples: Asset Purchase Agreement (MOVING iMAGE TECHNOLOGIES INC.)
Non-Competition; Non-Solicitation. In view of the unique and valuable services that it is expected Employee will render to the Company, the knowledge of the customers, trade secrets, and other proprietary information relating to the business of the Company and its customers and suppliers that Employee has obtained and that it is expected Employee will obtain, and in consideration of the compensation to be received hereunder, Employee agrees
(a) Subject that he/she will not during the period he/she is employed by the Company under this Agreement or otherwise (i) Participate In (hereinafter defined in this Section 6) any other business or organization (other than (A) not-for profit professional, civic, or similar organizations that do not compete with the Company or (B) as agreed to Section 7.5(bin writing by the Company), as whether or not such business or organization now is or shall then be competing with or of a material inducement nature similar to Purchaser to enter into this Agreement, Seller shall not, and shall cause its Affiliates not to, the business of the Company; (ii) directly or indirectly (whether by itselfreveal the name of, through an Affiliate solicit or in partnership or conjunction with or forinterfere with, encourage to leave the Company, or as a memberendeavor to entice away from the Company any of its suppliers, ownercustomers, consultant or agent ofemployees; or (iii) directly or indirectly employ any person who, at any other Person):time within the prior ninety (90) days, was an employee of the Company; and
(ib) for a period of four six months after he/she ceases to be employed by the Company under this Agreement or otherwise, he/she will not (4i) years following the Closing Date, undertake, manage, participate in, carry on or be engaged incompete with, or in Participate In any manner ownother business or organization which during such six-month period competes with, operate, orthe Company, with respect to any Competing Business Activities, advise, assist product or consult with, or have an interest in, any other Person that, directly or indirectly, undertakes, manages, participates in, carries on or is engaged in, any Competing Business Activities anywhere in service sold within the world, including as a partner, shareholder, member, employee, principal, agent, trustee or consultanttwelve (12) month period preceding such cessation; and
(ii) directly or indirectly reveal the name of, solicit or interfere with, encourage to leave the Company, or endeavor to entice away from the Company any of its suppliers, customers, or employees; or (iii) directly or indirectly employ any person who, at any time within ninety (90) days prior to such cessation, was an employee of the Company; provided that
(A) such six-month period shall be reduced to a four-month period if the Company terminates Employee's employment
(I) prior to August 1, 2007 for reasons other than those specified in Section 9(a) or
(II) on or after August 1, 2007 for reasons other than (1) as a result of a serious health condition (as defined in the Family and Medical Leave Act of 1993), and after giving effect to any reasonable accommodation required by law, Employee shall be physically or mentally incapacitated or disabled or otherwise unable fully to discharge his/her duties hereunder for a period of three ninety (90) consecutive days, (2) Employee shall be convicted, plead guilty, or enter a plea of nolo contendere to a felony or a crime involving moral turpitude, (3) years following Employee shall commit any act or omit to take any action in bad faith and to the Closing Date, solicit, entice, encourage or influencedetriment of the Company, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any of individuals listed on Schedule 7.5(a)(ii)(A(4) of the Seller Disclosure Schedule (collectively, the “Senior Management of the Business”) to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any member of the Senior Management of the Business Employee shall fail to perform services other than for his/her duties or obligations to the benefit Company and shall not correct such failure or breach within ten (10) days after receipt of Purchaser or the Acquired Companies or written notice thereof and
(B) if
(I) on or after August 1, 2007 Employee resigns for any reason or no reason or the Company terminates Employee's employment for reasons other than (1) as a result of a serious health condition (as defined in the Family and Medical Leave Act of 1993), and after giving effect to any reasonable accommodation required by law, Employee shall be physically or mentally incapacitated or disabled or otherwise unable fully to discharge his/her duties hereunder for a period of two ninety (90) consecutive days, (2) years following the Closing DateEmployee shall be convicted, solicit, entice, encourage or influenceplead guilty, or attempt enter a plea of nolo contendere to solicita felony or a crime involving moral turpitude, entice, encourage (3) Employee shall commit any act or influenceomit to take any action in bad faith and to the detriment of the Company, or attempt to solicit, entice, encourage or influence, any Transferred (4) Employee to resign or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any Transferred Employee shall fail to perform services other than for his/her duties or obligations to the benefit Company and shall not correct such failure or breach within ten (10) days after receipt of Purchaser or the Acquired Companies.written notice thereof and
(bII) Notwithstanding Employee is in full compliance with this Section 7.5(a)(ii)6 and Section 8, Sellers then the Company shall compensate Employee at the rate of Employee's base annual salary received from the Company immediately prior to such cessation, payable at such intervals (at least monthly) as salaries are paid generally to employees of the Company, during the six-month period commencing on the date that Employee's employment by the Company terminates, provided that (x) the obligation of the Company to compensate Employee pursuant to this Section 6 shall terminate if Employee does not remain in full compliance with this Section 6 and their Affiliates Section 8 (but the obligations of Employee pursuant to this Section 6 and Section 8, and the remedies of the Company for a violation of this Section 6 and Section 8, shall not be prohibited from or restricted in any way with respect to: (i) advertising job openings affected 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as termination of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) obligation of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 Company to the date of such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such Person.
(c) Seller expressly acknowledges that (i) each of the restrictions contained in this Section 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 thereincompensate Employee), (iiy) Seller is primarily responsible if Employee has resigned for any reason or no reason, the creation of Company shall have the right, in its sole discretion and at any time, to release Employee from its obligations under this Section 6 and to cease paying such valuecompensation, and (iiiz) the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements contained in Company shall have no obligation to compensate Employee pursuant to this Section 7.5 and (iv) Purchaser would not have entered into this Agreement or 6 during 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 period that the time period of any of the foregoing covenants Employee is too lengthy or the geographic coverage or scope of any of the covenants is too broad, the restrictive time period will be deemed receiving compensation pursuant 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 covenantSection 9.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) Subject to Section 7.5(bFor a period of five (5) years commencing on the Closing Date (the “Restricted Period”), as a material inducement to Purchaser to enter into this Agreement, Seller Sellers shall not, and shall cause its their respective Affiliates not to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with or for, or as a member, owner, consultant or agent of, any other Person):
(i) for a period of four (4) years following the Closing Date, undertake, manage, participate in, carry and shall direct their respective Representatives not to on or be engaged in, or in any manner own, operate, or, with respect to any Competing Business Activities, advise, assist or consult with, or have an interest in, any other Person thattheir behalf, directly or indirectly, undertakes, manages, participates in, carries on (i) engage in or is engaged in, any Competing Business Activities anywhere assist others in engaging in the worldBusiness in the Territory (other than as an employee of the Company), (ii) have an interest in any Person that engages directly or indirectly in the Business in the Territory in any capacity (other than as an employee of the Company), including as a partner, shareholder, member, director, manager, employee, principal, agent, advisor, trustee or consultant; and
(ii) (A) for a period of three (3) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit(iii) cause, enticeinduce or encourage any client, encourage customer, supplier or influencelicensor of the Company (including any existing or former client or customer of the Company and any Person that becomes a client or customer of the Company after the Closing), or attempt any other Person who has a business relationship with the Company, to solicitterminate or modify any such relationship with the Company. Notwithstanding the foregoing, enticeSellers may own, encourage directly or influenceindirectly, solely as an investment, securities of any of individuals listed Person traded on Schedule 7.5(a)(ii)(A) of the any national securities exchange if no Seller Disclosure Schedule is (collectively, the “Senior Management of the Business”) to resign alone or otherwise leave the employ of Purchaser or the Acquired Companies or otherwise hire, employ, engage or contract with any other Person or group of Persons) a controlling Person of, or a member of the Senior Management a group which controls, such Person and does not, directly or indirectly, own one percent (1%) or more of the Business to perform services other than for the benefit any class of Purchaser or the Acquired Companies or (B) for a period securities of two (2) years following the Closing Date, solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any Transferred Employee to resign or otherwise 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 the benefit of Purchaser or the Acquired Companiessuch Person.
(b) Notwithstanding Section 7.5(a)(ii)During the Restricted Period, Sellers shall not, and shall cause their respective Affiliates not to, and shall direct their respective Representatives not be prohibited to on their behalf, directly or indirectly, hire or solicit for employment any person who is or was employed by the Company 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 5.09(b) shall prevent any Seller or any of their respective Affiliates 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 the date of first contact by Seller or its Affiliates with such Transferred Employee, or employee whose employment has been terminated by Purchaser, the Acquired Companies or any Affiliate thereof, so long as there was no solicitation prohibited hereunder by Seller or its Affiliates prior thereto; (iii) continuing to engage in any business (other than the Business) that Seller or any of its Affiliates (other than the Acquired Companies) engages in as of the date of this Agreement, including the operations set forth on Schedule 7.5(b)(iii) of the Seller Disclosure Schedule; (iv) holding as a passive investment not more than five percent (5%) of the outstanding voting securities of any company (whether public or private) 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 has a subsidiary, division, group, franchise or segment that is, engaged in 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 such acquisition, the revenues derived from the Competing Business Activities were less than fifteen percent (15%) of the total consolidated revenues of such PersonCompany.
(c) Sellers acknowledge that a breach or threatened breach of this Section 5.09 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 any Seller expressly acknowledges of any such obligations, Buyer and the Company shall, in addition to any and all other rights and remedies that may be available to either of them 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 (iwithout any requirement to post bond or prove damages).
(d) each of Sellers acknowledge that the restrictions contained in this Section 7.5 5.09 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, the legitimate interests of Buyer and value of, the Acquired Companies’ businesses (including the goodwill inherent therein), (ii) Seller is primarily responsible for the creation of such value, (iii) constitute a material inducement to Buyer to enter into this Agreement and to consummate the transactions contemplated by this Agreement constitute good, valid and binding consideration for Seller’s obligations, covenants and agreements Agreement. In the event that any covenant contained in this Section 7.5 5.09 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 (iv) Purchaser would not have entered into this Agreement such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or any of the transactions contemplated hereby without the restrictions service or other limitations permitted by applicable Law. The covenants contained in this Section 7.5 5.09 and this Section 7.5 being in full force each provision hereof are severable and effect distinct covenants and binding and enforceable covenants of Sellerprovisions. If a court of competent jurisdiction finds that the time period The invalidity or unenforceability of any of such covenant or provision as written shall not invalidate or render unenforceable the foregoing remaining covenants is too lengthy or the geographic coverage provisions hereof, and any such invalidity or scope of unenforceability in 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 jurisdiction shall be extended during the term of not invalidate or render unenforceable such covenant or provision in any breach of such restrictive covenantother jurisdiction.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Kingsway Financial Services Inc)
