Non-Competition; Non-Solicitation. (a) For a period of five (5) years commencing on the Closing Date (the “Restricted Period”), neither of Seller nor SED shall, nor shall permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company Group. Notwithstanding the foregoing clause (ii), Seller, SED or their Affiliates may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates is not a controlling Person of, or a member of a group which controls, such Person and do not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person. (b) During the Restricted Period, neither of Seller nor SED shall, nor shall permit any of its Affiliates to, directly or indirectly, hire or solicit any employee 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 5.06(b) shall prevent Seller, SED or any of their Affiliates from hiring any employee whose employment has been terminated by the Company Group or Buyer. (c) During the Restricted Period, neither of Seller nor SED shall, nor shall 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 any member of the Company Group. (d) Each of Seller and SED acknowledges that a breach or threatened breach of this Section 5.06 would give rise to irreparable harm to Buyer and DSS, 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 SED of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). (e) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 4 contracts
Samples: Share Exchange Agreement (Impact Biomedical Inc.), Share Exchange Agreement (Impact Biomedical Inc.), Share Exchange Agreement (Document Security Systems Inc)
Non-Competition; Non-Solicitation. (a) For During the period in which you perform services for or at the request of the Company as an employee or independent contractor and for a period of five one (51) years commencing year following the termination of your provision of services to the Company as an employee or independent contractor for any reason or for no reason you will not, without the prior written consent of the Company Group:
(i) For yourself or on the Closing Date (the “Restricted Period”), neither behalf of Seller nor SED shall, nor shall permit any of its Affiliates toother person or entity, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacityeither as principal, including as a partner, shareholderstockholder, officer, director, member, employee, principalconsultant, agent, trustee representative or consultant; or (iii) intentionally interfere in any material respect other capacity, own, manage, operate or control, or be concerned, connected or employed by, or otherwise associate in any manner with, engage in, or have a financial interest in, any business which is directly competitive 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 clause (iieach, a “Restricted Activity”), Seller, SED except that (A) nothing contained herein will preclude you from purchasing or their Affiliates may own, directly or indirectly, solely as an investment, owning securities of any such Person business if such securities are publicly traded, and provided that are traded on any national your holdings do not exceed five percent of the issued and outstanding securities exchange if none of Seller, SED or any of their Affiliates is not a controlling Person of, or a member of a group which controls, such Person and do not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.business, and (B) nothing contained herein will prevent you from engaging in a Restricted Activity for or with respect to any subsidiary, division or affiliate or unit (each, a “Unit”) of an entity if that Unit is not engaged in any business which is competitive with the business of the Company Group, irrespective of whether some other Unit of such entity engages in such competition (as long as you do not engage in a Restricted Activity for such other Unit); or
(bii) During the Restricted Period, neither Either individually or on behalf of Seller nor SED shall, nor shall permit or through any of its Affiliates tothird party, directly or indirectly, hire solicit, divert or solicit appropriate or attempt to solicit, divert or appropriate, for the purpose of competing with the Company Group, any employee customers or patrons of the Company Group or encourage any such employee to leave such employment or hire any such employee who has left such employmentGroup, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 5.06(b) shall prevent Seller, SED or any of their Affiliates from hiring any employee whose employment has been terminated by prospective customers or patrons with respect to which the Company Group has developed or Buyer.made a sales presentation (or similar offering of services); or
(ciii) During the Restricted Period, neither Either individually or on behalf of Seller nor SED shall, nor shall permit or through any of its Affiliates tothird party, directly or indirectly, solicit (A) solicit, entice or entice, persuade or attempt to solicit solicit, entice or entice, persuade any clients other employees of or customers of any member of consultants to the Company Group or potential clients or customers of any member to leave the services of the Company Group for purposes any reason, or (B) employ, cause to be employed, or solicit the employment of diverting their business any employee of or consultant to the Company Group while any such person is providing services from to the Company Group or within six months after any member such person ceases providing services to the Company Group; or
(iv) Either individually or on behalf of or through any third party, directly or indirectly, interfere with or attempt to interfere with, the relations between the Company Group and any vendor or supplier to the Company Group.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of this Section 5.06 would give rise to irreparable harm to Buyer and DSS, 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 SED of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 3 contracts
Samples: Employment Agreement (T2 Biosystems, Inc.), Employment Agreement (T2 Biosystems, Inc.), Employment Agreement (T2 Biosystems, Inc.)
Non-Competition; Non-Solicitation. (a) For a period of five three (53) years commencing on the Closing Date (the “Restricted Period”), neither of Seller nor SED shallParent shall not, nor and shall not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging the Business anywhere in the Restricted Business in world (the “Territory”); (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in cause, induce or encourage any material respect actual or prospective client, customer, supplier or licensor of the Business (including any existing or former client or customer of a Seller and any Person that becomes a client or customer of the Business after the Closing), or any other Person who has a material business relationship with the business relationships (whether formed prior Business, to terminate or after the date of this Agreement) between modify any member of the Company Group and customers such actual or suppliers of any member of the Company Groupprospective relationship. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates Seller Parent may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates Seller Parent is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person; provided, however, that this Section 6.07 shall not apply in connection with, and following, Seller Parent’s Change of Control.
(b) During the Restricted Period, neither of Seller nor SED shallParent shall not, nor and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of person who is offered employment by a Buyer pursuant to Section 6.05(a) or is or was employed in the Company Group 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 5.06(b6.07(b) shall prevent Seller, SED Seller Parent or any of their its Affiliates from hiring (i) any employee whose employment has been terminated by Buyer Parent or (ii) after 60 days from the date of termination of employment, any employee whose employment has been terminated by the Company Group employee, or (iii) any employee with the prior consent of such Buyer; provided, further, that this Section 6.07(b) shall not apply to (i) any solicitation or hiring of an individual who was employed by a Buyer in California but is no longer employed by such Buyer at that time or (ii) a Buyer’s employees in California who contacted Seller Parent or any of its Affiliates independently and without any direct solicitation by Seller Parent or any of its Affiliates.
(c) During the Restricted Period, neither of Seller nor SED shall, nor shall 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 any member of the Company Group.
(d) Each of Seller and SED Parent acknowledges that a breach or threatened breach of this Section 5.06 6.07(a) would give rise to irreparable harm to Buyer and DSSParent, 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 SED Parent of any such obligations, Buyer or DSS Parent shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, may 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).
(ed) Each of Seller and SED Parent acknowledges that the restrictions contained in this Section 5.06 6.07 are reasonable and necessary to protect the legitimate interests of Buyer and DSS Parent and constitute a material inducement to each of Buyer and DSS Parent to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 6.07 should ever be adjudicated to exceed the time, geographic, product or service, 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, service or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 6.07 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 3 contracts
Samples: Master Purchase Agreement, Master Purchase Agreement (Emcore Corp), Master Purchase Agreement (Emcore Corp)
Non-Competition; Non-Solicitation. (a) As a material inducement to Purchaser to enter into this Agreement, Seller and its controlled Affiliates shall not, for a period of four (4) years after the Closing Date, directly or indirectly through any Person, own, acquire, manage, operate, control or participate in the ownership, management, operation or control of any Person engaged in any business that otherwise competes with the Business, anywhere in the United States; provided, however, that in no event shall crude oil marketing activities be considered a business that competes with the Business. Notwithstanding the foregoing, the Bridger Group may, without violating this Section 6.10, own a passive investment not in excess of 5% of the outstanding capital stock of a corporation which engages in such a business, if such capital stock is a security actively traded on an established securities exchange.
(b) For a period of five twelve (512) years commencing on months from and after the Closing Date (the “Restricted Period”), neither of Seller nor SED shall, nor shall permit any of its Affiliates to, directly or indirectlyDate, (i) engage in Purchaser, its Affiliates and each of their respective officers, directors or assist others in engaging in employees shall not (A) induce or attempt to induce any director, officer or employee of any member of the Restricted Business in Bridger Group to leave the Territory; employ of such member of the Bridger Group or (iiB) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) other way intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) relationship between any member of the Company Bridger Group and customers any employee, officer or suppliers director thereof; provided, however, that the foregoing shall not be applicable to the Continuing Employees and (ii) the Bridger Group, its Affiliates, and each of their respective officers, directors or employees shall not (A) induce or attempt to induce any director, officer or employee of Purchaser or its Affiliates to leave the employ of Purchaser or the applicable Affiliate or (B) in any other way intentionally interfere with the relationship between Purchaser or its Affiliates and any employee, officer or director thereof; provided, however, that for purposes of this Section 6.10(b), none of Riverstone, any portfolio company of Riverstone (other than the Bridger Group), any portfolio company of any member of the Company Group. Notwithstanding the foregoing clause (ii)investment fund affiliated with Riverstone, Seller, SED or their Affiliates may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates is not a controlling Person ofrespective directors, officers, equityholders or a member of a group which controls, such Person and do not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.
(b) During the Restricted Period, neither of Seller nor SED shall, nor shall permit any of its Affiliates to, directly or indirectly, hire or solicit any employee employees be deemed an Affiliate 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 5.06(b) shall prevent Seller, SED or any of their Affiliates from hiring any employee whose employment has been terminated by the Company Group or BuyerBridger Group.
(c) During the Restricted PeriodThe covenants and undertakings contained in Section 6.10 relate to matters which are of a special, neither unique and extraordinary character and a violation of Seller nor SED shall, nor shall permit any of its Affiliates tothe terms of Section 6.10 would cause irreparable injury to Purchaser or Seller, directly as applicable, such that money damages or indirectlyother legal remedies would not be an adequate remedy for such violation. Therefore, solicit Purchaser or enticeSeller, as applicable, shall be entitled to an injunction, restraining order or attempt to solicit or entice, other equitable relief from any clients or customers court of competent jurisdiction in the event of any member breach of Section 6.10 by the Company Group other Party without the necessity of proving actual damages or potential clients posting any bond. The rights and remedies provided by this Section 6.10 are cumulative and in addition to any other rights and remedies which Purchaser may have hereunder or customers of any member of the Company Group for purposes of diverting their business at law or services from any member of the Company Groupin equity.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of Notwithstanding anything contained in this Section 5.06 would give rise Agreement to irreparable harm to Buyer and DSSthe contrary, 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 (i) if Seller or SED of any such obligations, Buyer or DSS shall, in addition to any Purchaser breaches Section 6.10(b) and all the other rights Party seeks and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, obtains an injunction, specific performance and restraining order or other equitable relief from any other relief that may be available from a court of competent jurisdiction jurisdiction, the twelve (without 12) month period referred to in such Section 6.10(b) shall be computed from the date relief is granted to the other Party instead of from the Closing Date and reduced by any requirement to post bond)time following the Closing Date during which the breaching Party complied with its obligations thereunder.
(e) Each If any court of Seller competent jurisdiction in a final, binding and SED acknowledges nonappealable judgment determines that the restrictions contained in a specified time period, geographical area, business limitation or any other relevant feature of this Section 5.06 are reasonable and necessary to protect 6.10 is unreasonable, arbitrary or against public policy, then the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 should ever be adjudicated to exceed the timemaximum time period, geographicgeographical area, product or service, business limitation or other limitations permitted relevant feature which is determined by applicable Law in any jurisdictionsuch court to be reasonable, then any court is expressly empowered to reform such covenant, not arbitrary and such covenant not against public policy shall be deemed reformed, in such jurisdiction to enforced against the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdictionparty.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Ferrellgas Partners Finance Corp), Purchase and Sale Agreement
Non-Competition; Non-Solicitation. (a) For a The Participant shall not, at any time during the Participant’s employment or service with the Company or during the 12 month period of five (5) years commencing on following the Closing Date termination thereof for any reason (the “Restricted Period”), neither 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 Seller nor SED shall, nor shall permit the businesses of the Company or any of its Affiliates toAffiliates; provided, directly that upon a sale, transfer, or indirectlyother disposition of all or substantially all of the Common Stock, (i) engage in business, or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member assets of the Company Group and customers or suppliers of any member to an entity that is not an Affiliate of the Company GroupCompany, the restrictions described in this Section 8(a) shall no longer apply. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED the Participant shall be permitted to acquire a passive stock or their Affiliates may own, directly equity interest in such a business whose stock or indirectly, solely as an investment, securities of any such Person that equity interests are publicly traded on any a national securities exchange if none of Sellerexchange, SED provided that the stock or any of their Affiliates other equity interest acquired is not a controlling Person of, or a member more than five percent of a group which controls, the outstanding interest in such Person and do not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Personbusiness.
(b) During The Participant shall not, at any time during the Restricted Period, neither of Seller nor SED shall, nor shall permit any of its Affiliates to, directly or indirectlyindirectly (i) solicit, hire or solicit any employee 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 5.06(b) shall prevent Seller, SED or any of their Affiliates from hiring any employee whose employment has been terminated by the Company Group or Buyer.
(c) During the Restricted Period, neither of Seller nor SED shall, nor shall permit any of its Affiliates to, directly or indirectly, solicit or enticeinduce, or attempt to solicit or enticeinduce any officer, any clients director, employee, or customers of any member independent contractor of the Company Group or potential clients any of its direct or customers 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 hand, (ii) hire (or otherwise engage in a 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 the Parent or any member of its direct or indirect subsidiaries until six months after such individual’s relationship (whether as an officer, director, employee, or consultant) with the Company or such subsidiary or Affiliate has ended, or (iii) induce or attempt to induce any customer, supplier, prospect, licensee, or other business relation of the Company Group for purposes or any of diverting their its direct or indirect subsidiaries or Affiliates to cease doing business or services from any member of with the Company Groupor such subsidiary of Affiliate, or in any way interfere with the relationship between any such customer, supplier, prospect, licensee, or business relation, on the one hand, and the Company or such subsidiary or Affiliate, on the other hand.
(dc) Each of Seller and SED acknowledges In the event that a breach or threatened breach the terms of this Section 5.06 would give rise to irreparable harm to Buyer and DSS, for which monetary damages would not 8 shall be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach determined by Seller or SED of any such obligations, Buyer or DSS 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 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 requirement other respect, it will be interpreted to post bond).
(e) Each extend only over the maximum period of Seller and SED acknowledges that time for which it may be enforceable, over the restrictions contained in this Section 5.06 are reasonable and necessary maximum geographical area as to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 should ever which it may be adjudicated to exceed the time, geographic, product or serviceenforceable, 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 timeextent in all other respects as to which it may be enforceable, geographic, product or service, or other limitations permitted all as determined by applicable Law. The covenants contained such court in this Section 5.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdictionaction.
Appears in 2 contracts
Samples: Restricted Stock Unit Award Agreement (Hexion Inc.), Performance Stock Unit Award Agreement (Hexion Inc.)
Non-Competition; Non-Solicitation. (a) For In order for the Purchaser to have and enjoy the full benefit of the Shares, and as a material inducement to the Purchaser to enter into this Agreement (without such inducement the Purchaser would not have entered into this Agreement), for a period of five (5) years commencing on the Closing Date date of the Closing, each of Xxxxx X. Xxxxxx and the Seller shall not, directly or indirectly (whether by himself or 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):
(i) undertake, participate or carry on or be engaged or have any financial or other interest in, or in any other manner advise or assist any other Person in connection with the operation of, the business of structural steel fabrication and erection or the manufacture of specialty products including pollution control scrubbers, tunnel liners, pressure vessels and other related products primarily for the oil and gas industry (the “Restricted PeriodCompeting Business”), neither of Seller nor SED shall, nor shall permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging anywhere in the Restricted Business in world, other than with respect to Xxxxx X. Xxxxxx’x continued involvement with the Territory; Company;
(ii) have an interest in solicit, entice, encourage or intentionally influence, or attempt to solicit, entice, encourage or influence, any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member employee of the Company Group and customers or suppliers of any member of Purchaser, the Company Group. Notwithstanding the foregoing clause (ii), Seller, SED or their Affiliates may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their respective Affiliates is not a controlling Person ofto resign or leave the employ of the Purchaser, the Company or any of their respective Affiliates or otherwise hire, employ, engage or contract any such employee to perform services other than for the benefit of the Purchaser, the Company or any of their respective Affiliates; or
(iii) solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any customer of the Purchaser, the Company or any of their respective Affiliates (including any Person who has been a member customer of a group which controlsthe Company or any of its subsidiaries at any time during the period of 12 months before the Closing) to alter, such Person and do notreduce or terminate its business relationship with the Purchaser, in the aggregate, directly Company or indirectly, own 5% any of their respective Affiliates for the direct or more indirect benefit of any class of securities of such PersonCompeting Business.
(b) During Notwithstanding anything to the Restricted Periodcontrary set forth herein, neither of Seller nor SED shall, nor shall permit any of its Affiliates to, directly or indirectly, hire or solicit any employee 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 5.06(b) shall prevent Seller, SED or any of their Affiliates from hiring any employee whose employment has been terminated by the Company Group or Buyer.
(c) During the Restricted Period, neither of Seller nor SED shall, nor shall 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 any member of the Company Group.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of this Section 5.06 would give rise to irreparable harm to Buyer and DSS, 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 SED of any such obligationsof the provisions of Section 4.2(a) (the “Restrictive Covenants”):
(i) the Purchaser and its Affiliates shall have the right and remedy, Buyer or DSS shall, in addition without regard to any and all other rights and remedies that may be available remedy, to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and (A) have the Restrictive Covenants specifically enforced by any other relief that may be available from a court of competent jurisdiction and (B) have issued an injunction restraining any such breach without posting of a bond; it being understood that any requirement breach of any of the Restrictive Covenants would cause irreparable and material loss to post bond).the Purchaser and its Affiliates, the amount of which cannot be readily determined and as to which neither the Purchaser nor any of its Affiliates will have any adequate remedy at law or in damages;
(eii) Each it is the desire and intent of Seller and SED acknowledges the parties hereto that the restrictions contained Restrictive Covenants be enforced to the fullest extent permissible under the laws, orders and public policies applied in this Section 5.06 each jurisdiction in which enforcement is sought and if any Restrictive Covenant shall be adjudicated finally to be invalid or unenforceable, such Restrictive Covenant shall be deemed amended to the extent necessary in order that such provision be valid and enforceable, the remainder of such Restrictive Covenant shall not thereby be affected and shall be given full effect without regard to invalid portions and such amendment shall apply only with respect to the operation of the Restrictive Covenant in the particular jurisdiction in which such adjudication is made; and
(iii) the parties acknowledge and agree that the Restrictive Covenants are necessary for the protection and preservation of the value and the goodwill of the Shares and the Company’s business and are reasonable and necessary to protect the legitimate interests of Buyer valid in geographical and DSS temporal scope and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 should ever be adjudicated to exceed the time, geographic, product or service, or all other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdictionrespects.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (HC2 Holdings, Inc.)
Non-Competition; Non-Solicitation. (a) For a period of five (5) years commencing on the Closing Date (the “Restricted Period”), neither of Seller nor SED shallthe Stockholders shall not, nor and shall not permit any of its Affiliates totheir respective Affiliates, directly or indirectly, to (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person (other than the 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 trustee, or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company GroupCompany. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates any Stockholder may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates such Stockholder is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 5% five percent or more of any class of securities of such Person.
(b) During the Restricted Period, neither of Seller nor SED shallthe Stockholders shall not, nor and shall not permit any of its Affiliates totheir respective Affiliates, directly or indirectly, to hire or solicit any employee 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 that is not directed specifically to any such employees; provided, that nothing in this Section 5.06(b5.07(b) shall prevent Seller, SED any Stockholder or any of their his or its Affiliates from hiring (i) any employee whose employment has been terminated by the Company Group or Buyerthe Parent or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee.
(c) During the Restricted Period, neither of Seller nor SED shallthe Stockholders shall not, nor and shall not permit any of its Affiliates totheir respective Affiliates, directly or indirectly, to 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 any member of the Company GroupCompany.
(d) Each of Seller and SED acknowledges The Stockholders acknowledge that a breach or threatened breach of this Section 5.06 5.07 would give rise to irreparable harm to Buyer and DSSthe Parent, for which monetary damages would not be an adequate remedy, and hereby agrees agree that in the event of a breach or a threatened breach by Seller or SED any Stockholder of any such obligations, Buyer or DSS the Parent 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 performance, and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges The Stockholders acknowledge that the restrictions contained in this Section 5.06 5.07 are reasonable and necessary to protect the legitimate interests of Buyer and DSS the Parent and constitute a material inducement to each of Buyer and DSS the Parent to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 5.07 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 5.07 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 2 contracts
Samples: Merger Agreement (Appliance Recycling Centers of America Inc /Mn), Merger Agreement (Appliance Recycling Centers of America Inc /Mn)
Non-Competition; Non-Solicitation. During the period while you are employed hereunder and either: (ax) For for a period of five eighteen (518) years commencing months following the termination of your employment if for any reason you are entitled to receive payment pursuant to §4(b)(ii) or §4(d) of this Agreement, or (y) for a period of twelve (12) months following the termination of your employment if you are not entitled to payment pursuant to §4(b)(ii) or §4(d) of this Agreement, you will not during any such period, without the prior written consent of the Company:
(i) For yourself or on the Closing Date (the “Restricted Period”), neither behalf of Seller nor SED shall, nor shall permit any of its Affiliates toother person or entity, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacityeither as principal, including as a partner, shareholderstockholder, officer, director, member, employee, principalconsultant, agent, trustee representative or consultant; or (iii) intentionally interfere in any material respect other capacity, own, manage, operate or control, or be concerned, connected or employed by, or otherwise associate in any manner with, engage in, or have a financial interest in, any business which is directly or indirectly competitive 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 (each, a “Restricted Activity”) anywhere in the Company Group. Notwithstanding world (the foregoing clause (ii“Restricted Territory”), Seller, SED except that (A) nothing contained herein will preclude you from purchasing or their Affiliates may own, directly or indirectly, solely as an investment, owning securities of any such Person business if such securities are publicly traded, and provided that are traded on any national your holdings do not exceed three percent of the issued and outstanding securities exchange if none of Seller, SED or any of their Affiliates is not a controlling Person of, or a member of a group which controls, such Person and do not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.business, and (B) nothing contained herein will prevent you from engaging in a Restricted Activity for or with respect to any subsidiary, division or affiliate or unit (each, a “Unit”) of an entity if that Unit is not engaged in any business which is competitive with the business of the Company, irrespective of whether some other Unit of such entity engages in such competition (as long as you do not engage in a Restricted Activity for such other Unit); or
(bii) During the Restricted Period, neither Either individually or on behalf of Seller nor SED shall, nor shall permit or through any of its Affiliates tothird party, directly or indirectly, hire solicit, divert or solicit appropriate or attempt to solicit, divert or appropriate, for the purpose of competing with the Company, any customers or patrons of the Company, or any prospective customers or patrons with respect to which the Company has developed or made a sales presentation (or similar offering of services); or
(iii) Either individually or on behalf of or through any third party, solicit, entice or persuade or attempt to solicit, entice or persuade any employee of or consultant to 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 5.06(b) shall prevent Seller, SED or any of their Affiliates from hiring any employee whose employment has been terminated by the Company Group or Buyer.
(c) During the Restricted Period, neither of Seller nor SED shall, nor shall 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 service 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 any member of the Company GroupCompany.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of this Section 5.06 would give rise to irreparable harm to Buyer and DSS, 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 SED of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 2 contracts
Samples: Executive Employment Agreement (Invivo Therapeutics Holdings Corp.), Executive Employment Agreement (Invivo Therapeutics Holdings Corp.)
Non-Competition; Non-Solicitation. (a) For a period of five (5) years commencing on the Closing Date (the “Restricted Period”), neither of each Seller nor SED shallshall not, nor and shall not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (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, manager, inventor, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to past or after the date of this Agreementpresent) between any member of the Company Group and customers or suppliers Company, Buyer and/or any of any member of the Company Grouptheir Subsidiaries. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates each Seller may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates such Seller is not a controlling Person of, or a member of a group which controls, such Person and do and, except as set forth on Section 6.07(b) of the Disclosure Schedules, does not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such PersonPerson (other than the Transaction Shares).
(b) During the Restricted Period, neither of each Seller nor SED shallshall not, nor and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee inventor or scientist of the Company Group or encourage any Affiliate or any party involved in the creation and/or development of the Company Intellectual Property (irrespective of whether any such employee to leave party performed work on behalf of the Company or any Affiliate), or interfere with the relationship between any such employment party and the Company or any Affiliate, or hire any such employee party who has left such employmentis no longer involved with the Company or any Affiliate, except pursuant to a general solicitation which is not directed specifically to any such employeesparty; provided, that nothing in this Section 5.06(b6.06(b) shall prevent Seller, SED any Seller or any of their its Affiliates from hiring (i) any employee inventor or scientist whose employment has been terminated by the Company Group or BuyerBuyer or (ii) after one hundred and eighty (180) days from the date of termination of employment, any inventor or scientist whose employment has been terminated by the employee.
(c) During the Restricted Period, neither of Seller nor SED shallSellers shall not, nor and shall not permit any of its their Affiliates to, directly or indirectly, solicit or enticeentice away or divert, or attempt to solicit or enticeentice away or divert, any clients or customers of any member business relationships 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 any member of the Company Groupand/or its Subsidiaries.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of this Section 5.06 6.07 would give rise to irreparable harm to Buyer and DSSBuyer, 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 SED Sellers of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 6.07 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 6.07 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 6.07 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction. In addition, any breach by Buyer of any provision of this Agreement or any related agreement shall not diminish or affect the validity or enforceability of this Section 6.07.
(f) PJSC «Pharmsynthez» and Shemyakin-Ovchinnikov Institute of Bioorganic Chemistry, Russian Academy of Sciences, which entities are being provided royalties by the Company pursuant to the Assignment and Royalty Agreement shall execute separate non-competition and non-solicitation agreements as of the Closing containing the same or similar language as set forth in this Section 6.07 (the "Royalty Restrictive Covenant Agreements").
Appears in 2 contracts
Samples: Share Purchase Agreement (Xenetic Biosciences, Inc.), Share Purchase Agreement (Xenetic Biosciences, Inc.)
Non-Competition; Non-Solicitation. (a) For a period of five one (51) years year commencing on the Closing Date (the “"Restricted Period”"), neither of Seller nor SED shallXxxxxxx shall not, nor and shall not permit any of its his Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company GroupCompany. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates Xxxxxxx may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates Seller is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own five percent (5% %) or more of any class of securities of such Person.
(b) During the Restricted Period, neither of Seller nor SED shallXxxxxxx shall not, nor and shall not permit any of its his Affiliates to, directly or indirectly, hire or solicit any employee 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 5.06(b6.06(b) shall prevent Seller, SED Xxxxxxx or any of their his Affiliates from hiring (i) any employee whose employment has been terminated by the Company Group or BuyerBuyer or (ii) after one hundred eighty (180) days from the date of termination of employment, any employee whose employment has been terminated by the employee.
(c) During the Restricted Period, neither of Seller nor SED shallXxxxxxx shall not, nor and shall not permit any of its his 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 any member of the Company GroupCompany.
(d) Each of Seller and SED Xxxxxxx acknowledges that a breach or threatened breach of this Section 5.06 6.06 would give rise to irreparable harm to Buyer and DSSBuyer, 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 SED Xxxxxxx of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED Xxxxxxx acknowledges that the restrictions contained in this Section 5.06 6.06 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 6.06 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 6.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
(f) For the avoidance of doubt, neither Xxxxxxxxx nor Pierre, nor any of their respect Affiliates (with the exception of the Company and Xxxxxxx), shall be subject to the restrictions under this Section 6.06.
Appears in 1 contract
Samples: Share Purchase Agreement (Super League Gaming, Inc.)
Non-Competition; Non-Solicitation. a. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its affiliates and, accordingly, agrees as follows:
(ai) For During the Employment Term and, for a period of five twenty-four (524) years commencing on months following the Closing Date date Executive ceases to be employed hereunder for any reason (the “Restricted Period”), neither Executive will not directly or indirectly:
(A) engage in any business that competes with the business of Seller nor SED shallthe Company or its affiliates (including businesses which the Company or its affiliates have specific plans to conduct in the future, nor shall permit as to which the Company or its affiliates have taken steps towards commencing and as to which Executive has participated in such planning) in any geographical area where the Company or its affiliates manufactures, produces, sells, leases, rents, licenses or otherwise provides its products or services (a “Competitive Business”);
(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of its Affiliates toany Person) who or which engages in a Competitive Business;
(C) acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have as an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacityindividual, including as a partner, shareholder, memberofficer, employeedirector, principal, agent, trustee or consultant; or
(D) interfere with, or (iii) intentionally attempt to interfere in any material respect with the with, business relationships (whether formed prior to before, on or after the date of this Agreement) between the Company or any member of its affiliates and customers, clients, or suppliers of the Company Group and customers or suppliers of any member of the Company Group. Notwithstanding the foregoing clause its affiliates.
(ii)) Notwithstanding anything to the contrary in this Agreement, Seller, SED or their Affiliates may ownExecutive may, directly or indirectlyindirectly own, solely as an investment, securities of any such Person that engaged in the business of the Company or its affiliates which are publicly traded on any a national securities or regional stock exchange or quotation system or on the over-the-counter market if none of Seller, SED or any of their Affiliates Executive (x) is not a controlling Person person of, or a member of a group which controls, such Person person and do (y) does not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.
(biii) During the Restricted Period, neither Executive will not, whether on Executive’s own behalf or on behalf of Seller nor SED shall, nor shall permit or in conjunction with any of its Affiliates toPerson, directly or indirectly, hire :
(A) solicit or solicit encourage any employee of the Company Group or encourage any such employee its affiliates to leave such the employment of the Company or its affiliates; or
(B) 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 5.06(b) shall prevent Seller, SED or any of their Affiliates from hiring any employee whose employment has been terminated was employed by the Company Group or Buyerits affiliates as of the date of Executive’s termination of employment with the Company or who left the employment of the Company or its affiliates coincident with, or within one year prior to, the termination of Executive’s employment with the Company.
(civ) During the Restricted Period, neither of Seller nor SED shall, nor shall permit any of its Affiliates toExecutive will not, directly or indirectly, solicit or enticeencourage to cease to work with the Company or its affiliates any consultant then under contract with the Company or its affiliates.
(v) Notwithstanding the foregoing, or attempt to solicit or entice, any clients or customers of the term “affiliates” as used in Section 8(a) will not include any member of the Company Sponsor Group (as defined below) or potential clients or customers of any member of the Company Group for purposes of diverting their business or services from any member of the Company Group.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of this Section 5.06 would give rise to irreparable harm to Buyer and DSS, 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 SED of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.their
Appears in 1 contract
Samples: Employment Agreement (Hca Inc/Tn)
Non-Competition; Non-Solicitation. (a) For a period Until the four (4) year anniversary of five (5) years commencing on the Closing Date (the “Restricted Period”), neither of Seller nor SED shall, nor shall permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company Group. Notwithstanding the foregoing clause (ii), Seller, SED or their Affiliates may owneach Owner agrees that such Owner shall not, directly or indirectly:
(i) engage in, solely invest in, own, manage, operate, finance, control, advise, render services to, guarantee the obligations of, be employed by, be associated with, or in any manner be connected with any Person engaged in any business that the Target conducts as an investmentof the Closing Date in any geographic area in which the Target conducts such business; provided, securities however, that any Owner may acquire or otherwise own less than 5% of any such the outstanding capital stock of a Person that are traded is listed on any national securities exchange if none or which is registered under Section 12(g) of Sellerthe Exchange Act;
(A) cause, SED induce, or attempt to cause or induce any employee, agent, or independent contractor of the Parent or any of its Affiliates (including the Target) to terminate such relationship; (B) in any way interfere with the relationship between the Parent or any of its Affiliates (including the Target) and any of their Affiliates is not a controlling Person ofrespective employees, agents, or a member of a group which controlsindependent contractors; or (C) hire, such Person and do notretain, in the aggregateemploy, directly or indirectlyotherwise engage or attempt to hire, own 5% retain, employ, or more otherwise engage as an employee, independent contractor, or otherwise, any employee, agent, or independent contractor of any class the Parent or any of securities its Affiliates (including the Target).
(A) solicit, induce, or otherwise cause, or attempt to solicit, induce, or otherwise cause, any customer, supplier, licensor, licensee, or any prospective customer, supplier, licensor, or licensee that has been contacted or targeted for contact by the Target on or before the Closing Date, or any other person engaged in a business relationship with the Parent or any of its Affiliates (including the Target), to (1) terminate, curtail, or otherwise modify its relationship with the Parent or any of its Affiliates (including the Target) or (2) engage in business with a competitor of any the Parent or any of its Affiliates (including the Target), or (B) interfere in any way with the relationship between the Parent or any of its Affiliates (including the Target), and any of their respective customers, suppliers, licensors, licensees, or any such Personprospective customers, suppliers, licensors, or licensees, or any other Person engaged in a business relationship with the Parent or any of its Affiliates (including the Target).
(b) During If, before the Restricted Period, neither of Seller nor SED shall, nor shall permit any of its Affiliates to, directly or indirectly, hire or solicit any employee four (4) year anniversary of the Company Group or encourage any such employee to leave such employment or hire any such employee who has left such date of this Agreement, an Owner enters into an employment, except pursuant to a general solicitation which is not directed specifically to consulting engagement, independent contractor engagement, partnership, or other business association with any such employees; providedPerson, that nothing in Owner shall advise the Parent of the identity and address of such Person. The Parent may notify each such Person that such Owner is bound by this Section 5.06(b) shall prevent Seller, SED or any 6.1 and may furnish each such Person with a copy of their Affiliates from hiring any employee whose employment has been terminated by the Company Group or Buyerapplicable provisions of this Agreement.
(c) During Each Owner agrees that this Section 6.1, including the Restricted Periodprovisions relating to duration, neither of Seller nor SED shallgeographical area, nor shall permit any of and scope, is reasonable and necessary to protect and preserve the Parent’s and its Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of any member Affiliates’ (including the Target’s) legitimate business interests and the value of the Company Group or potential clients or customers of Target, and to prevent an unfair advantage from being conferred on any member of the Company Group for purposes of diverting their business or services from any member of the Company GroupOwner.
(d) Each Parent and each Owner agree that no more than $10,000 of Seller and SED acknowledges that a breach or threatened breach the Purchase Price shall be allocated as consideration in exchange for compliance with the provisions of this Section 5.06 would give rise to irreparable harm to Buyer and DSS, 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 SED of any such obligations, Buyer or DSS 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)6.1.
(e) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) For a period of five thirty-six (536) years months commencing on the Closing Date (the “Restricted Period”), neither of each Seller nor SED shallshall not, nor and shall not permit any of its such Seller’s Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company GroupCompany. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates a Seller may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates such Seller is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.
(b) During the Restricted Period, neither of each Seller nor SED shallshall not, nor and shall not permit any of its such Seller’s Affiliates to, directly or indirectly, hire or solicit any employee 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 5.06(b6.07(b) shall prevent Seller, SED such Seller or any of their its Affiliates from hiring (i) any employee whose employment has been terminated by the Company Group or BuyerBuyer or (ii) after one hundred eighty (180) days from the date of termination of employment, any employee whose employment has been terminated by the employee.
(c) During the Restricted Period, neither of each and every Seller nor SED shallshall not, nor and shall not permit any of its their Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or 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 any member of the Company GroupCompany.
(d) Each of Seller and SED hereby acknowledges that a breach or threatened breach of this Section 5.06 6.07 would give rise to irreparable harm to Buyer and DSSBuyer, 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 SED of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 6.07 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 6.07 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 6.07 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Wrap Technologies, Inc.)
Non-Competition; Non-Solicitation. (a) For a period of five (5) three years commencing on the Closing Date (the “Restricted Period”), neither of Seller nor SED shallthe Shareholders shall not, nor and shall not permit any of its Affiliates totheir respective Affiliates, directly or indirectly, to (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person (other than the 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 trustee, or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company GroupCompany. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates any Shareholder may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates such Shareholder is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 5% five percent or more of any class of securities of such Person.
(b) During the Restricted Period, neither of Seller nor SED shallthe Shareholders shall not, nor and shall not permit any of its Affiliates totheir respective Affiliates, directly or indirectly, to hire or solicit any employee 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 that is not directed specifically to any such employees; provided, that nothing in this Section 5.06(b) shall prevent Seller, SED any Shareholder or any of their his or its Affiliates from hiring (i) any employee whose employment has been terminated by the Company Group or Buyerthe Parent or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee.
(c) During the Restricted Period, neither of Seller nor SED shallthe Shareholders shall not, nor and shall not permit any of its Affiliates totheir respective Affiliates, directly or indirectly, to 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 any member of the Company GroupCompany.
(d) Each of Seller and SED acknowledges The Shareholders acknowledge that a breach or threatened breach of this Section 5.06 would give rise to irreparable harm to Buyer and DSSthe Parent, for which monetary damages would not be an adequate remedy, and hereby agrees agree that in the event of a breach or a threatened breach by Seller or SED any Shareholder of any such obligations, Buyer or DSS the Parent 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 performance, and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges The Shareholders acknowledge that the restrictions contained in this Section 5.06 are reasonable and necessary to protect the legitimate interests of Buyer and DSS the Parent and constitute a material inducement to each of Buyer and DSS the Parent to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Samples: Merger Agreement (nFusz, Inc.)
Non-Competition; Non-Solicitation. (a) For a period of five three (53) years commencing on the Closing Date (the “Restricted Period”), neither each of Seller nor SED shallthe Sellers shall not, nor and shall not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company GroupCompany. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates the Sellers may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates such Seller is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 51% or more of any class of securities of such Person. Buyer acknowledges and agrees that the involvement by one or more shareholders of Holding with Domino System A/S, in such shareholder’s capacity as a shareholder or member of the board of directors of Domino System A/S is not and will not be regarded as a breach of this non-competition covenant.
(b) During the Restricted Period, neither each of Seller nor SED shallthe Sellers shall not, nor and each shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee 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 5.06(b) shall prevent Seller, SED or any of their Affiliates from hiring any employee whose employment has been terminated by the Company Group or Buyer.
(c) During the Restricted Period, neither each of Seller nor SED shallthe Sellers shall not, nor and each 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 any member of the Company GroupCompany.
(d) Each of Seller and SED acknowledges Sellers acknowledge that a breach or threatened breach of this Section 5.06 5.08 would give rise to irreparable harm to Buyer and DSSBuyer, 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 SED of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 5.08 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 5.08 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 and 5.08and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) For a period of five (5) years [***] commencing on the Closing Date (the “Restricted Period”), neither of each Seller nor SED shallParty shall not, nor and shall not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company GroupCompany. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates each Seller Party may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange anywhere in the world if none of Seller, SED or any of their Affiliates such Seller Party is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.
(b) During the Restricted Period, neither of each Seller nor SED shallParty shall not, nor and shall not permit any of its such Seller Party’s Affiliates to, directly or indirectly, hire or solicit any employee 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 5.06(b5.08(a) shall prevent Seller, SED any Seller Party or any of their Affiliates from hiring (i) any employee whose employment has been terminated by the Company Group or BuyerBuyer or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee.
(c) During the Restricted Period, neither of no Seller nor SED Party shall, nor and shall not permit any of its their 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 any member of the Company GroupCompany.
(d) Each of Seller and SED Party acknowledges that a breach or threatened breach of this Section 5.06 5.08 would give rise to irreparable harm to Buyer and DSSBuyer, 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 SED Party of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED Party acknowledges that the restrictions contained in this Section 5.06 5.08 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 5.08 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 5.08 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
(f) Notwithstanding the foregoing, nothing in this Section 5.08 shall prevent GV Health or any of its direct or indirect Affiliates or any of their officers, directors, managers, agents, successors or employees (collectively the “Carve-out Sellers”), from (i) directly or indirectly engaging in the publication or placement of advertisements or other copy in periodicals, newspapers, magazines, websites, blogs, tweets, or the like, by or for any Person engaging in the Restricted Business, (ii) directly or indirectly promoting or sponsoring any Person engaging in the Restricted Business in the course and scope of a Carve-out Seller’s normal or customary business practices relating to clause (i) above, or (iii) directly or indirectly investing in or having an ownership or equity interest in any Person engaging in the Restricted Business, so long as the Carve-out Sellers have no actual control or management responsibilities over such Person and do not own more than 25% of the outstanding equity entitled to vote relative to such Person.
(g) [***]
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Green Thumb Industries Inc.)
Non-Competition; Non-Solicitation. (a) For a period of five three (53) years commencing on the Closing Date (the “Restricted Period”), neither of Seller nor SED shallSher shall not, nor and shall not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company GroupCompany. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates Sher may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates Sher is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 52% or more of any class of securities of such Person.
(b) During the Restricted Period, neither of Seller nor SED shallSher shall not, nor and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee 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 5.06(b6.03(b) shall prevent Seller, SED Sellers or any of their Affiliates from hiring (i) any employee whose employment has been terminated by the Company Group or BuyerBuyer or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee.
(c) During the Restricted Period, neither of Seller nor SED shallSher shall not, nor 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 any member of the Company GroupCompany.
(d) Each of Seller and SED Sher acknowledges that a breach or threatened breach of this Section 5.06 6.03 would give rise to irreparable harm to Buyer and DSSBuyer, 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 SED Sher of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED Sher acknowledges that the restrictions contained in this Section 5.06 6.03 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 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 5.06 6.03 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Legend Oil & Gas, Ltd.)
Non-Competition; Non-Solicitation. (a) For a period of five (5) years commencing on the Closing Date (the “Restricted Period”), neither of Seller nor SED shallshall not, nor and shall not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (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 trustee, lender or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company GroupCompany. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates Seller may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates Seller is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own five percent (5% %) or more of any class of securities of such Person.
(b) During the Restricted Period, neither of Seller nor SED shallshall not, nor and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee 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 5.06(b5.12(b) shall prevent Seller, SED Seller or any of their its Affiliates from hiring (i) any employee whose employment has been terminated by the Company Group or Buyer; (ii) after one hundred eighty (180) days from the date of termination of employment, any employee whose employment has been terminated by the employee; or (iii) any employee, other than a management employee, as a result of the use of a general solicitation (such as a newspaper or internet advertisement) not specifically directed to such employee.
(c) During the Restricted Period, neither of Seller nor SED shall, nor shall 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 any member of the Company Group.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of this Section 5.06 5.12(c) would give rise to irreparable harm to Buyer and DSSBuyer, 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 SED of any such obligations, Buyer or DSS 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).
(ed) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 5.12(d) are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 5.12(d) should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 5.12(d) and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Samples: Stock Purchase Agreement (Nuverra Environmental Solutions, Inc.)
Non-Competition; Non-Solicitation. (a) For a period of five (5) years commencing on the Closing Date (the “Restricted Period”), neither of Seller nor SED shallthe Shareholder shall not, nor and shall not permit any of its his Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company GroupCompany. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates the Shareholder may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates the Shareholder is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own five percent (5% %) or more of any class of securities of such Person.
(b) During the Restricted Period, neither of Seller nor SED shallthe Shareholder shall not, nor and shall not permit any of its his Affiliates to, directly or indirectly, hire or solicit any employee 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 5.06(b5.12(b) shall prevent Seller, SED the Shareholder or any of their his Affiliates from hiring soliciting any employee whose employment has been terminated by the Company Group or Buyer4Front or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee.
(c) During the Restricted Period, neither of Seller nor SED shallthe Shareholder shall not, nor and shall not permit any of its his 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 the Company; provided that nothing in this Section 5.12(c) shall prevent Shareholder or any member of the Company Grouphis Affiliates from engaging in general advertisement or solicitation that is not directed specifically to any such clients or customers.
(d) Each of Seller and SED The Shareholder acknowledges that a breach or threatened breach of this Section 5.06 5.12 would give rise to irreparable harm to Buyer and DSS4Front, 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 SED the Shareholder of any such obligations, Buyer or DSS 4Front shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED The Shareholder acknowledges that the restrictions contained in this Section 5.06 5.12 are reasonable and necessary to protect the legitimate interests of Buyer and DSS 4Front and constitute a material inducement to each of Buyer and DSS 4Front to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 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 such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.Section
Appears in 1 contract
Samples: Merger Agreement
Non-Competition; Non-Solicitation. (a) For a period of five twenty four (524) years commencing on months immediately following the Closing Date (the “Restricted Period”), neither of each Seller nor SED shallshall not, nor and shall not permit any of its such Seller’s respective Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; , (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; consultant or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Acquired Company Group and customers or suppliers service providers of any member of the Company Groupsuch Acquired Company. Notwithstanding the foregoing clause foregoing, (ii), Seller, SED or their Affiliates i) each Seller may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates such Seller is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own five percent (5% %) or more of any class of securities of such Person.Person and (ii) the obligations of this Section 5.09(a) shall not apply to any third party investment advisors trading for or making investments on behalf of any Seller or any of such Seller’s respective Affiliates
(b) During the Restricted Period, neither of each Seller nor SED shallshall not, nor and shall not permit any of its such Seller’s respective Affiliates to, directly or indirectly, solicit or hire or solicit any employee of the Company Group Acquired Companies or encourage any such employee to leave such employment or hire any such employee who has left such employment; provided, except that nothing in this Section 5.09(b) shall prevent Sellers or any of their respective Affiliates from (i) soliciting any employee pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 5.06(bemployee or (ii) shall prevent Seller, SED soliciting or any of their Affiliates from hiring any employee whose person who has left the employment has been terminated by of the Company Group Acquired Companies at least one hundred and eighty (180) days prior to such solicitation or Buyerbeing hired.
(c) During the Restricted Period, neither of each Seller nor SED shallshall not, nor and shall not permit any of its such Seller’s respective 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 Acquired Companies or potential clients or customers of any member of the Company Group Acquired Companies for purposes of diverting their business or services from any member of the Company GroupAcquired Companies.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of this Section 5.06 would give rise to irreparable harm to Buyer and DSS, 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 SED of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 5.09 are reasonable and necessary to protect the legitimate interests of Buyer and DSS Purchaser and constitute a material inducement to each of Buyer and DSS Purchaser to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 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 such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 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 provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Samples: Stock Purchase Agreement
Non-Competition; Non-Solicitation. (a) For a period of five (5) years 36 months commencing on the Closing Date (the “Restricted Period”), neither of Seller nor SED shallshall not, nor and shall not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company GroupCompany. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates Seller may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates Seller is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 53% or more of any class of securities of such Person.
(b) During the Restricted Period, neither of Seller nor SED shallshall not, nor and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of the Company Group 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 5.06(b) shall prevent Seller, SED Seller or any of their his Affiliates from hiring (i) any employee whose employment has been terminated by the Company Group or BuyerBuyer or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee.
(c) During the Restricted Period, neither of Seller nor SED shallshall not, nor 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 Buyer or potential clients or customers of any member of the Company Group or Buyer for purposes of diverting their business or services from any member of the Company Groupor for purposes of providing any services relating to the Restricted Business to such customers or potential customers or otherwise interfering with the Company or Buyer’s relationship with such customers or potential customers.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of this Section 5.06 would give rise to irreparable harm to Buyer and DSS, 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 SED of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) For a period of five four (54) years commencing on following the Closing Date (and in the “Restricted Period”case of Section 7.6(a)(v) indefinitely), neither or one (1) year following the termination of Seller nor SED shallemployment with the Company, nor whichever occurs later, each Member agrees that he shall permit any of its Affiliates tonot, directly or indirectlyindirectly through any Person or any Affiliate thereof, entity or contractual arrangement:
(i) engage in the Business or assist others any segment thereof anywhere in engaging the world (the “Restricted Territory”), it being acknowledged by such Member the Group Companies engage in the Business throughout the Restricted Territory;
(ii) acquire, own, manage, operate, join, control, or participate in the ownership, management, operation or control of, consult with or perform services for, lend money or capital to, invest capital in, or be connected in any manner with, including, without limitation, as a partner or through stock ownership in, any business or Person that engages in the Business or any segment thereof anywhere in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or ;
(iii) intentionally interfere in any material respect with the business relationships (whether formed prior solicit, offer employment 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 clause (ii), Seller, SED or their Affiliates may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates is not a controlling Person of, or a member of a group which controls, such Person and do not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.
(b) During the Restricted Period, neither of Seller nor SED shall, nor shall permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of the Company Group or encourage any such employee to leave such employment or hire any individual that is an employee or consultant of a Group Company or otherwise induce or attempt to induce (whether for their own account or for the account of any other Person) any individual that is an employee or consultant of a Group Company to leave the employ of such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employeesGroup Company; provided, however, that nothing in this Section 5.06(b7.6(a)(iii) shall prevent Sellerprohibit any such party from: (i) using general solicitations (including through search firms) not targeted at employees of the Group Companies, SED or employing any person who responds to such solicitation; (ii) hiring, employing or discussing employment with any person who contacts such party independently without any solicitations by such party or (iii) soliciting any person who has left the employment of the Group Companies at least twelve (12) months prior to such party soliciting such person;
(iv) induce or attempt to induce any customer, supplier, licensee or other business relation of a Group Company to cease doing business with such Group Company or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Group Companies; or
(v) disparage Parent or any of its Affiliates (including, after the Closing, the Group Companies) in any way that could adversely affect the goodwill, reputation or business relationships of Parent or any of its Affiliates with the public generally, or with any of their Affiliates customers, suppliers or employees.
(b) Each Member acknowledges that if it breaches any obligation under this Section 7.6, Parent will suffer immediate and irreparable harm and damage for which money alone cannot fully compensate, and Each Member therefore agrees that upon such breach or threatened breach, Parent shall be entitled to seek a temporary restraining order, preliminary injunction, permanent injunction or other injunctive relief, without posting any bond or other security, barring the other party from hiring violating any employee whose employment has been terminated by such provision. This Section 7.6(b) shall not be construed as an election of any remedy, or as a waiver of any right available to Parent under this Agreement or the Company Group or BuyerLaw, including the right to seek damages for a breach.
(c) During the Restricted Period, neither of Seller nor SED shall, nor shall 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 any member of the Company Group.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of this Section 5.06 would give rise to irreparable harm to Buyer and DSS, 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 SED of any such obligations, Buyer or DSS 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 If a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges determines that the restrictions contained in character, duration or geographical scope of the provisions of this Section 5.06 7.6 are unreasonable, it is the 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 any Member’s conduct that are reasonable in light of the circumstances and as are necessary to protect assure to Parent the legitimate interests benefits of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In If, in any judicial proceeding, a court shall refuse to enforce all of the event that any covenant contained in separate covenants of this Section 5.06 should ever be adjudicated 7.6 because taken together they are more extensive than necessary to exceed assure to Parent the timeintended benefits of this Agreement, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court it is expressly empowered understood and agreed by the parties that the provisions hereof that, if eliminated, would permit the remaining separate provisions to reform be enforced in such covenantproceeding, and such covenant shall be deemed reformedeliminated, in for the purposes of such jurisdiction to the maximum timeproceeding, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in from this Section 5.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdictionAgreement.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) For Seller acknowledges the competitive nature of the Business and accordingly agrees, in connection with the sale of the Purchased Assets, including the goodwill of the Business, which Buyer considers to be a valuable asset, and in exchange for good and valuable consideration, that for a period of five eighteen (518) years months commencing on the Closing Date (the “Restricted Period”), neither of Seller nor SED shallshall not, nor and shall not permit any of its Affiliates to, directly or indirectly, : (i) engage in or assist others in engaging in the flavored nut butter business (the “Restricted Business Business”) in the United States (the “Territory”); (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, director, member, manager, employee, principal, agent, trustee trustee, or consultant; or (iii) intentionally interfere in cause, induce, or encourage any material respect actual or prospective client, customer, supplier, or licensor of the Business (including any existing or former client or customer of Seller and any Person that becomes a client or customer of the Business after the Closing), or any other Person who has a material business relationship with the business relationships (whether formed prior Business, to terminate or after the date of this Agreement) between modify any member of the Company Group and customers such actual or suppliers of any member of the Company Groupprospective relationship. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates Seller may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates Seller is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 5% one percent (1%) or more of any class of securities of such Person.
(b) During the Restricted Period, neither of Seller nor SED shallshall not, nor and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of person who is or was employed in the Company Group 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, provided that nothing in this Section 5.06(b5.02(b) shall prevent Seller, SED Seller or any of their its Affiliates from hiring any employee whose employment has been terminated by the Company Group or Buyer.
(c) During the Restricted Period, neither of Seller nor SED shall, nor shall 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 any member of the Company Group.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of this Section 5.06 5.04 would give rise to irreparable harm to Buyer and DSSBuyer, 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 SED of any such obligations, Buyer or DSS 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 performance, and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bondbond or other security or to prove actual damages or that monetary damages will not afford an adequate remedy).
(ed) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 5.04 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 5.04 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdictionjurisdiction or any Governmental Order, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable LawLaw or such Governmental Order. The covenants contained in this Section 5.06 5.04 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Samples: Asset Purchase Agreement (Verus International, Inc.)
Non-Competition; Non-Solicitation. (a) For a period of five (5) years commencing on the Closing Date (the “Restricted Period”), neither of Seller nor SED shallshall not, nor and shall not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company GroupCompany. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates Seller may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates Seller is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 51% or more of any class of securities of such Person.
(b) During the Restricted Period, neither of Seller nor SED shallshall not, nor and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee 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 5.06(b5.07(b) shall prevent Seller, SED Seller or any of their its Affiliates from hiring (i) any employee whose employment has been terminated by the Company Group or BuyerBuyer or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee.
(c) During the Restricted Period, neither of Seller nor SED shallshall not, nor 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 any member of the Company GroupCompany.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of this Section 5.06 5.07 would give rise to irreparable harm to Buyer and DSSBuyer, 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 SED of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 5.07 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 5.07 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 5.07 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) For Except with respect to authorized activities of the Insider Shareholders in their capacities as employees, officers, or agents of the Company, the Buyer or the Parent, for a period of five (5) years commencing on the First Closing and expiring on the fifth (5th) anniversary of the Second Closing Date (the “Restricted Period”), neither of Seller nor SED shalleach Insider Shareholder and each other Shareholder identified on Exhibit 11 (collectively the “Restricted Shareholders”) shall not, nor and shall not permit any of its his or her Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a director, partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company GroupCompany. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates a Restricted Shareholder may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates such Restricted Shareholder is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.
(b) During Except with respect to the authorized activities of the Shareholders in their capacities as employees, officers, or agents of the Company, the Buyer or the Parent, during the Restricted Period, neither of Seller nor SED shalleach Shareholder shall not, nor and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee 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 5.06(b5.04(b) (Non-competition; Non-solicitation) shall prevent Seller, SED each Shareholder or any of their his or her Affiliates from hiring (i) any employee whose employment has been terminated by the Company Group or BuyerBuyer or (ii) after one (1) year from the date of termination of employment, any employee whose employment has been terminated by the employee.
(c) During the Restricted Period, neither of Seller nor SED shalleach Shareholder shall not, nor and shall not permit any of its his or her 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 any member of the Company GroupCompany.
(d) Each of Seller and SED Shareholder acknowledges that a breach or threatened breach of this Section 5.06 5.04 (Non-competition; Non-solicitation) would give rise to irreparable harm to Buyer and DSSBuyer, 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 SED any Shareholder of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED Shareholder acknowledges that the restrictions contained in this Section 5.06 5.04 (Non-competition; Non-solicitation) are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS Parent to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 5.04 (Non-competition; Non-solicitation) should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 5.04 (Non-competition; Non-solicitation) and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) For a period of five (5) years twenty-four months commencing on the Closing Date (the “Restricted Period”), neither each member of Seller nor SED shall, nor the Management Group agrees that he or she shall permit any of its Affiliates tonot, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any the Company. Notwithstanding the foregoing, (x) each member of the Company Group. Notwithstanding the foregoing clause (ii), Seller, SED or their Affiliates Management Group may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none such member of Seller, SED or any of their Affiliates the Management Group is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such PersonPerson and (y) nothing in this Section 5.08 shall restrict any member of the Management Group or any of their respective Affiliates from, directly or indirectly, owning or operating a Permitted Gaming Business, including under any owner or operator gaming licensing.
(b) During the Restricted Period, neither each member of Seller nor SED shall, nor shall permit any of its Affiliates tothe Management Group agrees that it will not, directly or indirectly, hire or solicit any employee 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 5.06(b) shall prevent Seller, SED or any of their Affiliates from hiring any employee whose employment has been terminated by the Company Group or Buyer.
(c) During the Restricted Period, neither each member of Seller nor SED shall, nor shall permit any of its Affiliates tothe Management Group agrees that it will not, 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 any member of the Company GroupCompany.
(d) Each member of Seller and SED the Management Group acknowledges that a breach or threatened breach of this Section 5.06 would 5.08 may give rise to irreparable harm to Buyer and DSSBuyer, 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 SED such member of the Management Group of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED The Management Group acknowledges that the restrictions contained in this Section 5.06 5.08 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 5.08 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 5.08 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Samples: Securities Purchase Agreement (Accel Entertainment, Inc.)
Non-Competition; Non-Solicitation. (a) For a period of five one (51) years year commencing on the Closing Date (the “Restricted Period”), neither of Seller nor SED shallSellers shall not, nor and shall not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; , (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; , 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 member of the Company Group and customers or suppliers of any member of the Company GroupCompany. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates a Seller may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates such Seller is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.
(b) During the Restricted Period, neither of Seller nor SED shallSellers shall not, nor and shall not permit any of its their Affiliates to, directly or indirectly, hire or solicit any employee 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 5.06(b6.03(b) shall prevent Seller, SED Sellers or any of their Affiliates from hiring (i) any employee whose employment has been terminated by the Company Group or Buyer, or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee.
(c) During the Restricted Period, neither of Seller nor SED shallSellers shall not, nor 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 any member of the Company GroupCompany.
(d) Each of Seller and SED acknowledges Sellers acknowledge that a breach or threatened breach of this Section 5.06 6.03 would give rise to irreparable harm to Buyer and DSSBuyer, 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 SED Sellers of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges Sellers acknowledge that the restrictions contained in this Section 5.06 6.03 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 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 5.06 6.03 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) For a period of five (5) years commencing on the Closing Date (the “Restricted Period”), neither of Seller nor SED Parent shall, nor and shall not permit any of its Affiliates their respective Subsidiaries to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company GroupCompany. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED Parent or any of their Affiliates respective Subsidiaries may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED Parent or any of their Affiliates such Subsidiary is not a controlling Person of, or a member of a group which that controls, such Person and do does not, in the aggregate, directly or indirectly, own five percent (5% %) or more of any class of securities of such Person. For the avoidance of doubt, the provisions of this Section 5.02(a) shall not apply to any Person or an Affiliate of any Person (other than Seller, Parent or any of their respective Subsidiaries) that acquires Seller, Parent or any of their respective Subsidiaries, whether such acquisition is by purchase of all or substantially all of the assets of Seller, Parent or any of their respective Subsidiaries, or by merger or transfer of stock or other transaction resulting in the transfer of a majority of the capital stock of Seller, Parent or any of their respective Subsidiaries on a fully diluted basis; provided, however, that the provisions of this Section 5.02(a) shall apply to any Person surviving a direct merger to which Seller, Parent or any of their respective Subsidiaries are a party, but not to any Affiliate thereof (other than Seller, Parent or any of their respective Subsidiaries).
(b) During the Restricted Period, neither of Seller nor SED shalland Parent shall not, nor and shall not permit any of its Affiliates their respective Subsidiaries to, directly or indirectly, : (i) hire or solicit any employee of the Company Group or Company; (ii) encourage any such employee to leave such employment employment; or (iii) 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 5.06(b5.02(b) shall prevent Seller, SED Parent or any of their respective Affiliates from hiring (x) any employee whose employment has been terminated by the Company Group or BuyerBuyer without cause or (y) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee; provided, further, that neither (1) a general solicitation of employment in any newspaper, magazine, trade publication or other media not specifically targeted at any of the Company’s employees nor (2) a referral by a recruiter or employment agency that has not specifically targeted any of the Company’s employees (and has been instructed not to do so) shall not, alone, be considered a solicitation for purposes of this Section 5.02(b).
(c) During the Restricted Period, neither of Seller nor SED shalland Parent shall not, nor and shall not permit any of its Affiliates their respective Subsidiaries 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 Restricted Customer for purposes of diverting their business or services from any member of the Company Groupor in order to provide services or products competitive with the services or products offered by the Company.
(d) Each of Seller and SED Parent each acknowledges that a breach or threatened breach of this Section 5.06 5.02 would give rise to irreparable harm to Buyer and DSSBuyer, 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 SED Parent of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED Parent each acknowledges that the restrictions contained in this Section 5.06 5.02 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this AgreementTransactions. In the event that any covenant contained in this Section 5.06 5.02 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 5.02 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Samples: Stock Purchase and Redemption Agreement (P&f Industries Inc)
Non-Competition; Non-Solicitation. (a) For a period of five (5) years commencing on the Closing Date (the “Restricted Period”), neither of Seller nor SED shallthe Shareholder shall not, nor and shall not permit any of its his Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company GroupCompany. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates the Shareholder may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates the Shareholder is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own five percent (5% %) or more of any class of securities of such Person.. 4817-8152-4729.10 31
(b) During the Restricted Period, neither of Seller nor SED shallthe Shareholder shall not, nor and shall not permit any of its his Affiliates to, directly or indirectly, hire or solicit any employee 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 5.06(b5.12(b) shall prevent Seller, SED the Shareholder or any of their his Affiliates from hiring soliciting any employee whose employment has been terminated by the Company Group or Buyer4Front or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee.
(c) During the Restricted Period, neither of Seller nor SED shallthe Shareholder shall not, nor and shall not permit any of its his 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 the Company; provided that nothing in this Section 5.12(c) shall prevent Shareholder or any member of the Company Grouphis Affiliates from engaging in general advertisement or solicitation that is not directed specifically to any such clients or customers.
(d) Each of Seller and SED The Shareholder acknowledges that a breach or threatened breach of this Section 5.06 5.12 would give rise to irreparable harm to Buyer and DSS4Front, 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 SED the Shareholder of any such obligations, Buyer or DSS 4Front shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED The Shareholder acknowledges that the restrictions contained in this Section 5.06 5.12 are reasonable and necessary to protect the legitimate interests of Buyer and DSS 4Front and constitute a material inducement to each of Buyer and DSS 4Front to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 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 such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 5.12 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) For a period of five two (52) years commencing on the date of Closing Date (the “Restricted Period”), neither of Seller nor SED shall, nor each Non-Competing Persons shall permit any of its Affiliates to, not directly or indirectlyindirectly anywhere, (i) engage in or assist others in engaging in the Restricted Business in the TerritoryBusiness; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between the Company and any member Person who is a customer or supplier of the Company Group and customers or suppliers of any member as of the Company GroupClosing Date or who, to the knowledge of the Non-Competing Persons, becomes a customer or supplier after the Closing Date. For the avoidance of doubt, the foregoing covenant shall apply only in the Restricted Territory. Notwithstanding the foregoing clause foregoing, nothing in this Agreement shall prevent or restrict any Non-Competing Persons from: (ii), Seller, SED or their Affiliates may owni) owning, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates such Non- Competing Persons is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own five percent (5% %) or more of any class of securities of such Person, (ii) engage in research, lecturing, or teaching at (x) an academic institution, (y) non- profit organization, or (z) any domestic or foreign government, (iii) own a passive equity interest in a private debt or equity investment fund in which Non-Competing Persons does not have the ability to control or exercise managerial influence over such fund or provide any consultations for such fund, or (iv) perform any services for Buyer or its Subsidiaries (including, after the Closing, the Company).
(b) During the Restricted Period, neither of Seller nor SED shall, nor each Non-Competing Persons shall permit any of its Affiliates to, not hire or directly or indirectly, hire or indirectly solicit any employee 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 5.06(b5.8(b) shall prevent Seller, SED or any of their Affiliates such Non-Competing Persons from hiring (i) any employee whose employment has been terminated by the Company Group or Buyer, (ii) after one hundred eighty (180) days from the date of termination of employment, any employee whose employment has been terminated by the employee, or (iii) any employee pursuant to general, public solicitations for employment, or using an employee recruiting or search firm to conduct a search, that does not specifically target employees or consultants of the Company or its Subsidiaries.
(c) During the Restricted Period, neither of Seller nor SED shall, nor each Non-Competing Persons shall permit any of its Affiliates tonot, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients Person who is known to such Non-Competing Persons to be a client or customers of any member customer 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 any member of the Company GroupCompany.
(d) Each of Seller and SED Non-Competing Persons acknowledges that a breach or threatened breach of this Section 5.06 5.8 would give rise to irreparable harm to Buyer and DSSBuyer, 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 SED any Non-Competing Persons of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED Non-Competing Persons acknowledges that the restrictions contained in this Section 5.06 5.8 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 5.8 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.48
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) For a period of five (52) years commencing on the Closing Date (the “Restricted Period”), neither of Seller nor SED shallthe Catapult Shareholders shall not, nor and shall not permit any of its their Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group Cerberus and its Affiliates and customers or suppliers of any member of the Company GroupCerberus and its Affiliates. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates the Catapult Shareholders may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates the Catapult Shareholder is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.
(b) During the Restricted Period, neither of Seller nor SED shallthe Catapult Shareholders shall not, nor and shall not permit any of its his Affiliates to, directly or indirectly, hire or solicit any employee of the Company Group Cerberus or its Affiliates, 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 5.06(b5.2(b) shall prevent Seller, SED the Catapult Shareholders or any of their Affiliates from hiring any employee whose employment has been terminated by the Company Group a Cerberus or Buyerits Affiliates.
(c) During the Restricted Period, neither of Seller nor SED shallthe Catapult Shareholders shall not, nor and shall not permit any of its their 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 Cerberus or its Affiliates or potential clients or customers of any member of the Company Group Cerberus or its Affiliates, for purposes of diverting their business or services from any member of the Company GroupCerberus or its Affiliates.
(d) Each of Seller and SED The Catapult Shareholders acknowledges that a breach or threatened breach of this Section 5.06 5.2 would give rise to irreparable harm to Buyer and DSSCerberus, 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 SED the Catapult Shareholders of any such obligations, Buyer or DSS 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 (without any requirement to post bond).
(e) . Each of Seller and SED Catapult Shareholder acknowledges that the restrictions contained in this Section 5.06 5.2 are reasonable and necessary to protect the legitimate interests of Buyer Cerberus and DSS its Affiliates and constitute a material inducement to each of Buyer and DSS Cerberus to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 5.2 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 such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 5.2 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cerberus Cyber Sentinel Corp)
Non-Competition; Non-Solicitation. (a) For 4.1 Subject to Clause 4.2, each of the Sellers severally agrees that, for a period of five four (54) years commencing on following the Closing Date (the “Restricted Restrictive Period”), neither of such Seller nor SED shallshall not, nor and shall not cause, authorise or permit any of its Affiliates or Subsidiaries, to, :
(a) directly or indirectly, (i) engage in own, manage, operate, control or assist others in engaging participate in the Restricted Business ownership, management, operation or control of, or provide any financing to, any Person (other than the Buyer, the Company or their Subsidiaries or Affiliates) that engages in any activity, operation or business that competes with the then current business of the Company in the Relevant Territory; (ii) have , except that each such Seller may hold less than 3% of the share capital of any such publicly traded Person, and further provided that the Sellers may be employed by a customer of the Business that is not also a competitor of the Company following termination of their Employment Agreement, but solely in the capacity as an interest employee and not in any Person consultancy capacity;
(b) take any action that engages directly is designed or indirectly in intended to have the Restricted Business in the Territory in effect of discouraging any capacitylessor, including as a partnerlicensor, shareholder, membercustomer, employee, principal, agent, trustee or consultant; supplier from having a business relationship or (iii) intentionally interfere in any material respect potential business relationship with the Company or from maintaining business relationships or entering into a new business relationship with the Company or that may have a Material Adverse Effect on any existing business relationship;
(whether formed prior c) interfere with, or attempt to interfere with, the employment of any officers, employees, representatives or after the date of this Agreement) between any member agents of the Company Group and customers Buyer, the Buyer’s Subsidiaries or suppliers of any member of Person which the Buyer is a subsidiary of, the Company Group. Notwithstanding the foregoing clause (ii), Seller, SED or their Affiliates may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates is not Subsidiaries or Affiliates, holding a controlling Person ofsenior management, administrative sales or operational function, or a member of a group which controls, such Person and do not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.
(b) During the Restricted Period, neither of Seller nor SED shall, nor shall permit any of its Affiliates to, directly or indirectlysolicit, hire or solicit attempt to induce any employee of them to leave the employ of the Buyer, the Buyer’s Subsidiaries or any Person which the Buyer is a subsidiary of, the Company or any such Subsidiary or Affiliate, other than by way of a bona fide recruitment advertising campaign directed at the market in general and not specifically targeting any such employees.
4.2 To the extent that a court of competent jurisdiction orders that the Restrictive Period defined in Clause 4.1 above is neither enforceable nor binding on the Sellers, the parties agree that the Restrictive Period should be reduced to a period of three (3) years following the Closing Date.
4.3 Each of the Sellers acknowledges and agrees that the covenants set forth in this Clause 4 are necessary to protect the goodwill of the Company Group or encourage that is being purchased by the Buyer. Each of the Sellers further acknowledges and agrees that the Buyer’s willingness to enter into this Agreement is conditional and dependent upon such Sellers’ promise to be bound by this Clause 4. The parties hereto acknowledge and agree that any breach of the restrictive covenants contained in this Clause 4 would cause irreparable injury and that the remedy at law for 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 5.06(b) shall prevent Seller, SED or any of their Affiliates from hiring any employee whose employment has been terminated by the Company Group or Buyer.
(c) During the Restricted Period, neither of Seller nor SED shall, nor shall 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 any member of the Company Group.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of this Section 5.06 would give rise to irreparable harm to Buyer and DSS, for which monetary damages would not be an adequate remedyinadequate, and hereby agrees that in the event of a breach or a threatened breach by Seller or SED of any such obligations, Buyer or DSS shallparties agree and consent that, in addition to any other available remedy, temporary and all other rights and remedies that permanent injunctive relief may be available granted in any action or proceeding which may be brought by any party to it enforce such restrictive covenants.
4.4 Each of the Sellers acknowledges and agrees that all of the restrictions, covenants and agreements in Clause 4 hereof are appropriate, reasonable and valid (including with respect to geographic scope and duration) and fully necessary for the protection of the legitimate interests of the Buyer or the Buyer’s Subsidiaries or any Person which the Buyer is a subsidiary of. If any provision contained in this Clause 4 shall for any reason be held invalid, illegal or unenforceable in any respect, such breachinvalidity, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and illegality or unenforceability shall not affect any other relief provisions of this Clause 4 but this Clause 4 shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. It is the intention of the parties that may if any of the restrictions or covenants contained herein is held to cover a geographic area or to be available from for a length of time which is not permitted by Applicable Law, or in any way construed to be too broad or to any extent invalid, such provision shall not be construed to be null, void and of no effect, but to the extent such provision would be valid or enforceable under Applicable Law, a court of competent jurisdiction shall construe and interpret or reform this Clause 4 to provide for a covenant having the maximum enforceable geographic area, time period and other provisions (without any requirement to post bond).
(enot greater than those contained herein) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant as shall be deemed reformed, in valid and enforceable under such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Applicable Law. The covenants contained in this Section 5.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Samples: Share Purchase Agreement (Management Network Group Inc)
Non-Competition; Non-Solicitation. (a) For a period of five (5) years commencing on the Closing Date (the “Restricted Period”), neither of each Seller nor SED shallshall not, nor and shall not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (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 trustee, or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the an Acquired Company Group and customers or suppliers of any member of the Company Groupan Acquired Company. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates a Seller may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates such Seller is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.
(b) During the Restricted Period, neither of each Seller nor SED shallshall not, nor and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of the an Acquired 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 5.06(b5.04(b) shall prevent a Seller, SED or any of their its respective Affiliates from hiring (i) any employee whose employment has been terminated by an Acquired Company or Buyer, or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the Company Group or Buyeremployee.
(c) During the Restricted Period, neither of each Seller nor SED shallshall not, nor 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 an Acquired Company Group or potential clients or customers of any member of the an Acquired Company Group for purposes of diverting their business or services from any member of the Company Groupan Acquired Company.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of this Section 5.06 5.04 would give rise to irreparable harm to Buyer and DSSBuyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by a Seller or SED of any such obligations, Buyer or DSS 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 performance, and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 5.04 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 5.04 should ever be adjudicated to exceed the time, geographic, product 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 product, or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 5.04 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Samples: Share Purchase Agreement (Allied Motion Technologies Inc)
Non-Competition; Non-Solicitation. (a) For a period of five three (53) years commencing on the Closing Date (the “Restricted Period”), neither of Seller nor SED shallSellers and the Principal Members each shall not, nor and shall not permit any of its their respective Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in cause, induce or encourage any material respect actual or prospective client, customer, supplier or licensor of the Business (including any existing or former client or customer of Sellers or the Principal Members 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 relationships (whether formed prior Business, to terminate or after the date of this Agreement) between modify any member of the Company Group and customers such actual or suppliers of any member of the Company Groupprospective relationship. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates Sellers and the Principal Members each may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates is Sellers are not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.
(b) During the Restricted Period, neither of Seller nor SED shallSellers and the Principal Members each shall not, nor and shall not permit any of its their respective Affiliates to, directly or indirectly, hire or solicit any employee of person who is offered employment by Buyer pursuant to Section 6.05, or is or was employed in the Company Group 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 5.06(b6.07(b) shall prevent SellerSellers, SED the Principal Members or any of their respective Affiliates from hiring retaining the services of (i) any employee whose employment has been terminated by Buyer (or its applicable Affiliate) or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the Company Group or Buyeremployee.
(c) During Sellers and the Restricted Period, neither of Seller nor SED shall, nor shall 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 any member of the Company Group.
(d) Each of Seller and SED acknowledges Principal Members each acknowledge that a breach or threatened breach of this Section 5.06 6.07 would give rise to irreparable harm to Buyer and DSSBuyer, 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 Sellers or SED the Principal Members of any such obligations, Buyer or DSS 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).
(ed) Each of Seller Sellers and SED acknowledges the Principal Members each acknowledge that the restrictions contained in this Section 5.06 6.07 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 6.07 should ever be adjudicated to exceed the time, geographic, product or service, 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, service or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 6.07 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
(e) The obligations of Sellers and the Principal Members under this Section 6.07 are joint and several.
Appears in 1 contract
Samples: Asset Purchase Agreement (Diversified Restaurant Holdings, Inc.)
Non-Competition; Non-Solicitation. (a) For a period of five twelve (512) years months commencing on the Closing Date (the “Restricted Period”), neither none of Seller nor SED Seller, Xxxx Xxxx or Xxxxx Xxxxxxx shall, nor shall or permit any of its their respective Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in cause, induce or encourage any material respect actual or prospective client, customer, supplier or licensor of the Business (including any existing or former client or customer of Seller and any Person that becomes a client or customer of the Business after the Closing), or any other Person who has a material business relationship with the business relationships (whether formed prior Business, to terminate or after the date of this Agreement) between modify any member of the Company Group and customers such actual or suppliers of any member of the Company Groupprospective relationship. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates Seller may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates Seller is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 5% 5%/ or more of any class of securities of such Person.
(b) During the Restricted Period, neither none of Seller nor SED Seller, Xxxx Xxxx or Xxxxx Xxxxxxx shall, nor shall or permit any of its their respective Affiliates to, directly or indirectly, hire or solicit any employee of person who is offered employment by Buyer pursuant to Section 6.05(a) or is or was employed in the Company Group 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 5.06(b6.07(b) shall prevent Seller, SED Seller or any of their its Affiliates from hiring (i) any employee whose employment has been terminated by Buyer or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the Company Group or Buyeremployee.
(c) During the Restricted Period, neither of Seller nor SED shall, nor shall 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 any member of the Company Group.
(d) Each of Seller Seller, Xxxx Xxxx and SED Xxxxx Xxxxxxx acknowledges that a breach or threatened breach of this Section 5.06 6.07 would give rise to irreparable harm to Buyer and DSSBuyer, 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 SED of any such obligations, Buyer or DSS 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).
(ed) Each of Seller Seller, Xxxx Xxxx and SED Xxxxx Xxxxxxx acknowledges that the restrictions contained in this Section 5.06 6.07 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 6.07 should ever be adjudicated to exceed the time, geographic, product or service, 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, service or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 6.07 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
(e) This Section 6.07 shall be subject to the terms and conditions of any employment or consulting agreement executed between Buyer and any equity owner or Affiliate of Seller.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) For a period of five (5) years commencing on the Closing Date (the “Restricted Period”), neither of Seller nor SED shallshall not, nor and Seller shall not permit any of its his Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the United States (the “Territory”); (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company GroupCompany. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates Seller may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates Seller is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own five percent (5% %) or more of any class of securities of such Person.
(b) During the Restricted Period, neither of Seller nor SED shallshall not, nor and Seller shall not permit any of its his Affiliates to, directly or indirectly, hire or solicit any employee 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 5.06(b7.8(b) shall prevent Seller, SED Seller or any of their his Affiliates from hiring (i) any employee whose employment has been terminated by the Company Group or BuyerBuyer or (ii) after one hundred eighty (180) days from the date of termination of employment, any employee whose employment has been terminated by the employee.
(c) During the Restricted Period, neither of Seller nor SED shallshall not, nor and Seller shall not permit any of its his 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 any member of the Company GroupCompany.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of this Section 5.06 7.7 would give rise to irreparable harm to Buyer and DSSthe Company, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by a Seller or SED of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 7.7 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 7.7 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 7.7 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Kingsway Financial Services Inc)
Non-Competition; Non-Solicitation. (a) For a period of five two (52) years commencing on the Closing Date (the “Restricted Period”), neither of the Seller nor SED shallParties shall not, nor and shall not permit any of its their Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company Group. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates the Seller Parties may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates the Seller Parties is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.
(b) During the Restricted Period, neither of the Seller nor SED shallParties shall not, nor and shall not permit any of its their Affiliates to, directly or indirectly, hire or solicit any employee 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 5.06(b) shall prevent Seller, SED the Seller Parties or any of their Affiliates from hiring (i) any employee whose employment has been terminated by the Company Group or BuyerBuyer or (ii) after one hundred and eighty (180) days from the date of termination of employment, any employee whose employment has been terminated by the employee.
(c) During the Restricted Period, neither of the Seller nor SED shallParties shall not, nor and shall not permit any of its their 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 any member of the Company Group.
(d) Each of The Seller and SED acknowledges Parties acknowledge that a breach or threatened breach of this Section 5.06 would give rise to irreparable harm to Buyer and DSSBuyer, 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 or SED Parties of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of The Seller and SED acknowledges Parties acknowledge that the restrictions contained in this Section 5.06 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.Section
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) For Xxxxx Xxxxxx (“Executive”) acknowledges and recognizes the legitimate business interests of the businesses of the Company and its affiliates and accordingly agrees as follows:
(i) During Executive’s employment with the Company and for a period of five (5) years commencing on equal to twelve months following the Closing Date date Executive ceases to be employed by the Company for any reason (the “Restricted Period”), neither Executive will not, whether on Executive’s own behalf or on behalf of Seller nor SED shallor in conjunction with any person, nor shall permit firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”), solicit or assist in soliciting business in direct competition with the Restricted Group in the Business.
(ii) During the Restricted Period, Executive will not directly or indirectly:
(A) engage in the Business for a Competitor;
(B) enter the employ of, or render any of its Affiliates services to, a Competitor;
(C) acquire a financial interest in, or otherwise become actively involved with, a Competitor, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have as an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacityindividual, including as a partner, shareholder, memberofficer, employeedirector, principal, agent, trustee or consultant; or
(D) interfere with, or attempt to interfere with, business relationships between the members of the Restricted Group and any of their clients, customers, suppliers, partners, members or investors.
(iii) intentionally interfere Notwithstanding anything to the contrary in any material respect with the business relationships this Appendix B (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 clause (ii”), Seller, SED or their Affiliates Executive may own, directly or indirectlyindirectly own, solely as an investment, securities of any such Person that engaged in a Business (including, without limitation, a Competitor) which are publicly traded on any a national securities or regional stock exchange or on the over-the-counter market if none of Seller, SED or any of their Affiliates Executive (A) is not a controlling Person person of, or a member of a group which controls, such Person and do (B) does not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.
(biv) During the Restricted Period, neither Executive will not, whether on Executive’s own behalf or on behalf of Seller nor SED shall, nor shall permit or in conjunction with any of its Affiliates toPerson, directly or indirectly, hire or :
(A) solicit any employee of the Company Group or encourage any such employee who is a director or is more senior than a director of the Restricted Group to leave such the employment or of the Restricted Group; or
(B) 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 5.06(b) shall prevent Seller, SED or any of their Affiliates from hiring any employee whose employment has been terminated was employed by the Restricted Group as of the date of Executive’s termination of employment with the Company or who left the employment of the Restricted Group or Buyerwithin six months prior to the termination of Executive’s employment with the Company.
(cC) Notwithstanding the foregoing, Executive may engage in job searches or placing job advertisements not targeted at employees of the Restricted Group, and may provide references for employees of the Restricted Group upon request.
(v) During the Restricted Period, neither Executive will not, whether on Executive’s own behalf or on behalf of Seller nor SED shall, nor shall permit or in conjunction with any of its Affiliates toPerson, directly or indirectly, solicit or entice, or attempt to solicit or entice, and intentionally encourage any clients or customers of any member material consultant of the Company Restricted Group or potential clients or customers of any member of to cease working with the Company Group for purposes of diverting their business or services from any member of the Company Restricted Group.
(dvi) Each of Seller and SED acknowledges that a breach or threatened breach For purposes of this Section 5.06 would give rise to irreparable harm to Buyer and DSS, 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 SED of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.:
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) For a period of five (5) two years commencing on from and after the Closing Date (the “Restricted Period”), neither of no Seller nor SED Party shall, nor and no Seller Party shall permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former client or customer of any Seller and any Person that becomes a client or customer of the Business after the Closing), or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship, or otherwise intentionally interfere in with 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 Groupsuch relationship. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates each Seller Party may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates Seller is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.
(b) During the Restricted Period, neither of each Seller nor SED shallParty shall not, nor and shall permit any of its Affiliates to, directly or indirectly, hire or solicit any employee 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 5.06(b) shall prevent Seller, SED or any of their Affiliates from hiring any employee whose employment has been terminated by the Company Group or Buyer.
(c) During the Restricted Period, neither of Seller nor SED shall, nor shall 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 Business or potential clients or customers of any member of the Company Group Business for purposes of diverting their business or services from the Business.
(c) For a period of three years commencing on the Closing Date, each Seller Party shall not, and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee who is or was employed by Buyer during such three-year period, or encourage any such employee to leave such employment or hire any such employee who has left such employment, except such restriction shall not apply to any immediate family member of either Member or except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 6.06(c) shall prevent any Seller Party or any of its Affiliates from hiring (i) any employee whose employment has been terminated by Buyer or (ii) after 90 days from the Company Groupdate of termination of employment, any employee whose employment has been terminated by the employee.
(d) For a period of one year commencing on the Closing Date, no Seller Party shall, and no Seller Party shall permit any of its Affiliates to, directly or indirectly, own, operate or develop, directly or indirectly, any lodging or hospitality facilities in Orla, Texas or Xxxxxx, Texas, for the benefit of employees of WinCo Trucking, HRS Operating LLC and HRS Management LLC (“Direct Employee Lodging”). From and after the one-year anniversary of the Closing Date and for a period of one year thereafter, to the extent any Seller Party or any Affiliate thereof develops any Direct Employee Lodging, such Direct Employee Lodging in Orla, Texas only shall purchase any and all meals for such facility from Buyer or an Affiliate thereof at reasonable and customary rates prevailing in the industry. Notwithstanding anything to the contrary in this Section 6.06(d), to the extent that the Lodging Agreement for the employees of WinCo Trucking is terminated by Buyer, other than as a result of any breach by WinCo Trucking, prior to the one-year anniversary of the Closing Date, the restrictive covenants set forth in the first sentence of this Section 6.06(d) shall not apply to WinCo Trucking from and after the date of such termination.
(e) Notwithstanding anything to the contrary contained herein, Parent shall be permitted to continue to operate the Excluded Locations during the Restricted Period in a manner consistent with the operation of such facilities as of the Closing Date; provided, that none of the Excluded Locations located in Texas shall offer catering or food and meal services to residents during the Restricted Period.
(f) Each of Seller and SED Party acknowledges that a breach or threatened breach of this Section 5.06 6.06 would give rise to irreparable harm to Buyer and DSSBuyer, 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 SED Party of any such obligations, Buyer or DSS 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).
(eg) Each of Seller and SED Party acknowledges that the restrictions contained in this Section 5.06 6.06 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 6.06 should ever be adjudicated to exceed the time, geographic, product or service, 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, service or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 6.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Samples: Asset Purchase Agreement (Target Hospitality Corp.)
Non-Competition; Non-Solicitation. (a) For While you are employed hereunder and for a period of five one (51) years commencing year following the termination of your employment hereunder for any reason or for no reason, you will not, without the prior written consent of the Company:
(i) For yourself or on the Closing Date (the “Restricted Period”), neither behalf of Seller nor SED shall, nor shall permit any of its Affiliates toother person or entity, directly or indirectly, (i) either as principal, partner, stockholder, officer, director, member employee, consultant, agent, representative or in any other capacity, own, manage, operate or control, or be concerned, connected or employed by, or otherwise associate in any manner with, engage in or assist others in engaging in the have a financial interest in, any Competitive Company (each, a “Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company Group. Notwithstanding the foregoing clause (iiActivity”), Seller, SED except that (A) nothing contained herein will preclude you from purchasing or their Affiliates may own, directly or indirectly, solely as an investment, owning securities of any such Person business if such securities are publicly traded, and provided that are traded on any national your holdings do not exceed one percent (1%) of the issued and outstanding securities exchange if none of Seller, SED or any of their Affiliates is not a controlling Person of, or a member of a group which controls, such Person and do not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.business and (B) nothing contained herein will prohibit you from engaging in a Restricted Activity for or with respect to any subsidiary, division or affiliate or unit (each, a “Unit”) of a Competitive Company if that Unit is not engaged in any business which is competitive with the business of the Company Group, irrespective of whether some other Unit of such Competitive Company engages in such competitive business (as long as you do not engage in a Restricted Activity for such other Unit);
(bii) During the Restricted Period, neither Either individually or on behalf of Seller nor SED shall, nor shall permit or through any of its Affiliates tothird party, directly or indirectly, hire solicit, divert or solicit appropriate or attempt to solicit, divert or appropriate, for the benefit of any employee Competitive Company, any customers or patrons of the Company Group or encourage any such employee to leave such employment or hire any such employee who has left such employmentGroup, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 5.06(b) shall prevent Seller, SED or any of their Affiliates from hiring any employee whose employment has been terminated by prospective customers or patrons with respect to which the Company Group has developed or Buyer.made a sales presentation (or similar offering of services);
(ciii) During the Restricted Period, neither Either individually or on behalf of Seller nor SED shall, nor shall permit or through any of its Affiliates tothird party, directly or indirectly, solicit (A) solicit, entice or entice, persuade or attempt to solicit solicit, entice or entice, persuade any clients employees of or customers of any member of consultant to the Company Group or potential clients or customers of any member to leave the service of the Company Group for purposes any reason or (B) employ, cause to be employed, or solicit the employment of, any employee of diverting their business or consultant to the Company Group while any such person is providing services from to the Company Group; or
(iv) Either individually or on behalf of or through any member of third party, directly or indirectly, interfere with, or attempt to interfere with, the relations between the Company Group and any vendor or supplier to the Company Group.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of this Section 5.06 would give rise to irreparable harm to Buyer and DSS, 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 SED of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) For a period of five three (53) years commencing on the Closing Date (the “Restricted Period”), neither of Seller nor SED shallthe Stockholders shall not, nor and shall not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the United States of America (the “Territory”); (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Parent or the Company Group and customers or suppliers of any member of the Parent or the Company; provided, that nothing in this Section 5.14(a) shall prohibit the Stockholders from performing services for Parent or the Company Grouppost-Closing or from owning shares of Parent Stock or other securities of Parent. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates each Stockholder may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates Stockholder is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 5% two percent (2%) or more of any class of securities of such Person.
(b) During the Restricted Period, neither of Seller nor SED shallthe Stockholders shall not, nor and shall not permit any of its their Affiliates to, directly or indirectly, hire or solicit any employee of the Company Group or Parent 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 5.06(b5.14(b) shall prevent Seller, SED the Stockholders or any of their Affiliates from hiring (i) any employee whose employment has been terminated by the Company Group or BuyerParent or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee.
(c) During the Restricted Period, neither of Seller nor SED shallthe Stockholders shall not, nor and shall not permit any of its their Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of any member of Parent or the Company Group or potential clients or customers of any member of Parent or the Company Group for purposes of diverting their business or services from any member of Parent or the Company GroupCompany.
(d) During the Restricted Period, the Stockholders shall not, and shall not permit any of their Affiliates to, directly or indirectly, make any disparaging statement or other negative statement, either written or oral, regarding Parent or the Company, their respective Affiliates, officers, mangers, directors, businesses, or the products or services thereof.
(e) Each of Seller and SED Stockholder acknowledges that a breach or threatened breach of this Section 5.06 5.14 would give rise to irreparable harm to Buyer and DSSParent, 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 SED such Stockholder of any such obligations, Buyer or DSS Parent 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).
(ef) Each of Seller and SED Stockholder acknowledges that the restrictions contained in this Section 5.06 5.14 are reasonable and necessary to protect the legitimate interests of Buyer and DSS Parent and constitute a material inducement to each of Buyer and DSS Parent to enter into this Agreement and consummate the transactions contemplated by this AgreementTransactions. In the event that any covenant contained in this Section 5.06 5.14 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law 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 Lawlaw. The covenants contained in this Section 5.06 5.14 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.
(g) Stockholders’ Representative may terminate the covenants in Section 5.14. (h) (a), (b), or (c) at any time during the Restricted Period if (i) any portion of the Subsequent Payment is not paid and delivered when due, (ii) any portion of the Earn-Out Payment is not paid when due (except and only to the extent that Parent is contesting the same in good faith in accordance with Section 1.4(e)(vi)) and such non-payment is not cured within twenty (20) calendar days after written notice is given by Stockholder’s Representative to Parent.
Appears in 1 contract
Samples: Merger Agreement (Revolution Lighting Technologies, Inc.)
Non-Competition; Non-Solicitation. (a) For a period of five (5) three years commencing on the Closing Date (the “"Restricted Period”"), neither of Seller nor SED shalleach Restricted Person shall not, nor and shall not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company GroupCompany. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates any Restricted Person may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates such Restricted Person is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.
(b) During the Restricted Period, neither of each Seller nor SED shallshall not, nor and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee 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 5.06(b6.02(b) shall prevent Seller, SED any Seller or any of their respective Affiliates from hiring (i) any employee whose employment has been terminated by the Company Group or BuyerBuyer or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee.
(c) During the Restricted Period, neither of each Seller nor SED shallshall not, nor 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 any member of the Company Groupin the Restricted Business. Notwithstanding the foregoing, this Section 6.02(c) shall not apply to Cxxxxxx Pharmaceuticals, LLC, Absorption Systems LP, Absorption Systems, Inc. or any of their respective Affiliates.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of its restrictions under this Section 5.06 6.02 would give rise to irreparable harm to Buyer and DSSBuyer, 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 SED of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 6.02 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 6.02 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 6.02 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Samples: Stock Purchase Agreement (Eyegate Pharmaceuticals Inc)
Non-Competition; Non-Solicitation. (a) For a period of five (5) years commencing on the Closing Date (the “"Restricted Period”"), neither of Seller nor SED shallSellers shall not, nor and shall not permit any of its or their Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company GroupCompany. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates a Seller may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates such Seller is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.
(b) During the Restricted Period, neither of Seller nor SED shallSellers shall not, nor and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee 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 5.06(b5.07(b) shall prevent Seller, SED Sellers or any of its or their Affiliates from hiring (i) any employee whose employment has been terminated by the Company Group or BuyerBuyer or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee.
(c) During the Restricted Period, neither of Seller nor SED shallSellers shall not, nor and shall not permit any of its or their 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 any member of the Company GroupCompany.
(d) Each of Seller and SED acknowledges Sellers acknowledge that a breach or threatened breach of this Section 5.06 5.07 would give rise to irreparable harm to Buyer and DSSBuyer, 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 SED Sellers of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges Sellers acknowledge that the restrictions contained in this Section 5.06 5.07 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 5.07 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 5.07 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) For a period of five three (53) years commencing on the Closing Date (the “Restricted Period”), neither of Seller nor SED shallshall not, nor and shall not permit any of its Affiliates to, directly or indirectly, (i) own, manage, operate, join, control, participate or engage in or assist others in managing, operating, participating or engaging in the Restricted Business in the TerritoryTerritory whether doing so as an officer, director, manager, member, owner, partner, joint venturer, manager, employee, independent contractor, consultant, advisor or a sales representative, whether paid or unpaid; (ii) have an interest in any Person that owns, manages, operates, joins, controls, participates or engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, manager, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member the Company and customers, members or suppliers of the Company Group and customers or suppliers of any member of within the Company GroupRestricted Business. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates Seller may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates Seller is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.
(b) During the Restricted Period, neither of (i) Seller nor SED shallshall not, nor and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee 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 5.06(b) shall prevent Seller, SED or any of their Affiliates from hiring any employee whose employment has been terminated by the Company Group or Buyer.
(c) During the Restricted Period, neither of Seller nor SED shall, nor shall 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 any member of the Company Group.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of this Section 5.06 would give rise to irreparable harm to Buyer and DSS, 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 SED of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.and
Appears in 1 contract
Non-Competition; Non-Solicitation. The Executive acknowledges that the services to be rendered by her to the Company (which, as used in this Section 9, shall be deemed to include the Company and each of its Subsidiaries) are of a special and unique character. In consideration of her employment hereunder, the Executive agrees, for the benefit of the Company, that she will not (other than in connection with performing her duties for the Company or its affiliates):
(a) For during the Term and, if the Executive's employment hereunder is terminated (x) by the Company for any reason other than a period of five termination Without Cause or (5y) years commencing on by the Closing Date Executive other than for Good Reason, for 12 months thereafter: (the “Restricted Period”), neither of Seller nor SED shall, nor shall permit any of its Affiliates toi) engage, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including whether as a partner, shareholder, member, employee, principal, agent, trustee representative, consultant, employee, partner, stockholder, limited partner or consultant; other investor (other than an investment of not more than (x) 5% of the stock or equity of any corporation the capital stock of which is publicly traded or (iiiy) intentionally interfere 5% of the ownership interest of any limited partnership or other entity) or otherwise, within the United States of America, in any material respect business that competes directly or materially 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 clause (ii), Seller, SED or their Affiliates may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates is not a controlling Person of, or a member of a group which controls, such Person and do not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.
(b) During the Restricted Period, neither of Seller nor SED shall, nor shall permit any of its Affiliates to, directly or indirectly, hire or solicit any employee 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 5.06(b) shall prevent Seller, SED or any of their Affiliates from hiring any employee whose employment has been terminated conducted by the Company Group as of the Date of Termination or Buyer.
(cii) During the Restricted Period, neither of Seller nor SED shall, nor shall permit any of its Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, away from the Company, either for her own account or for any clients individual, firm or customers of corporation, any member person known by her to have been, at any time during the 12 months prior to such solicitation, enticement or attempt, a borrower from, a lender to, or a direct and material participant in a substantial financial transaction with, the Company, or to have been actively solicited by the Company to become a borrower from, a lender to, or a direct and material participant in a substantial financial transaction with, the Company; or
(b) during the Term and for 12 months thereafter: (i) solicit or entice, or attempt to solicit or entice, away from the Company any individual who is known by the Executive to then be an officer or employee of the Company Group either for her own account or potential clients for any individual, firm or customers corporation, whether or not such individual would commit a breach of any member a contract of employment by reason of leaving the service of the Company Group for purposes or (ii) employ, directly or indirectly, any person who has been, during the 12 months prior to employment by the Executive, an officer, employee or sales representative of diverting their the Company.
(c) The Executive understands that the provisions of this Section 9 may limit her ability to earn a livelihood in a business or services from any member similar to the business of the Company Groupbut nevertheless agrees and hereby acknowledges that (A) 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, (D) such provisions are not unduly burdensome to the Executive, and (E) the consideration provided hereunder is sufficient to compensate the Executive for the restrictions contained in such provisions. In consideration thereof and in light of the Executive's education, skills and abilities, the Executive agrees that the Executive will not assert in any forum that such provisions prevent the Executive from earning a living or otherwise are void or unenforceable or should be held void or unenforceable.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of this Section 5.06 would give rise Notwithstanding anything herein to irreparable harm to Buyer and DSSthe contrary, for which monetary damages would the Executive shall not be an adequate remedyrestricted from engaging in a non-competing business pursuant to Section 9(a) even if another division, and hereby agrees subsidiary or affiliate of that in enterprise does compete with the event of a breach Company, so long as she does not perform any services for such division, subsidiary or a threatened breach by Seller or SED of any such obligations, Buyer or DSS 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)affiliate.
(e) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Non-Competition; Non-Solicitation. (ai) For a period of five (5) years commencing on During the Closing Date (the “Restricted Period”), neither of Seller nor SED shall, nor the Executive shall permit any of its Affiliates tonot, directly or indirectly: (A) solicit, (i) engage in service, or assist others any other individual, person, firm, or other entity in engaging in soliciting or servicing, any Customer for the Restricted Business in purpose of providing and/or selling any products that are provided and/or sold by any member of the TerritoryCompany Group, or performing any services that are performed by any member of the Company Group, or performing any services or providing and/or selling any products that any member of the Company Group proposed to initiate performing, selling or providing during the twelve (12)-month period immediately preceding the Termination Date, based on active discussions with the Board that occurred during such twelve (12)-month period, as evidenced by existing memoranda, Board minutes or other written correspondence, and only to the extent the Company Group was capable of pursuing such proposals as a business and financial matter; (iiB) have an interest in interfere with or damage any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) relationship and/or agreement between any member of the Company Group and customers any Customer; or suppliers of (C) associate (including, but not limited to, association as a sole proprietor, owner, employer, partner, principal, investor, joint venturer, shareholder, associate, employee, member, consultant, contractor, director or otherwise) with any member of Competitive Enterprise; provided, however, that (x) the Company Group. Notwithstanding the foregoing clause (ii), Seller, SED or their Affiliates Executive may own, directly or indirectly, solely as an investmenta passive investor, securities of any such Person entity that are has outstanding publicly traded on securities, so long as the Executive’s direct holdings in any national securities exchange if none such entity shall not in the aggregate constitute more than 5% of Sellerthe voting power of such entity, SED and (y) the exercise of any rights or remedies of the Executive or any of their his Affiliates is under any other agreements with the Company or any of its Affiliates, including, without limitation, the Trademark License Agreement and the Facilities Use Agreement, will not be deemed to be a controlling Person ofbreach of this Section 6(c). The Executive acknowledges that this covenant has a unique, or very substantial, and immeasurable value to the Company, that the Executive has sufficient assets and skills to provide a member livelihood for the Executive while such covenant remains in force, and that, as a result of a group which controls, such Person and do notthe foregoing, in the aggregateevent that the Executive breaches such covenant, directly or indirectly, own 5% or more monetary damages would be an insufficient remedy for the Company and equitable enforcement of any class of securities of such Personthe covenant would be proper.
(bii) During the Restricted Period, neither of Seller nor SED shallthe Executive shall not solicit, nor shall permit any of its Affiliates to, directly or indirectly, hire or solicit any employee 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 5.06(b) shall prevent Seller, SED or any of their Affiliates from hiring any employee whose employment has been terminated by the Company Group or Buyer.
(c) During the Restricted Period, neither of Seller nor SED shall, nor shall permit any of its Affiliates to, directly or indirectly, solicit or entice, persuade, or attempt to solicit induce any individual who is employed or entice, any clients or customers of engaged by any member of the Company Group (or potential clients who was so employed or customers of engaged within six (6) months immediately preceding the Executive’s Termination Date) to terminate or refrain from continuing such employment or engagement or to become employed by or enter into contractual relations with any member of the Company Group for purposes of diverting their business other individual or services from any entity other than a member of the Company Group.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of this Section 5.06 would give rise to irreparable harm to Buyer and DSS, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach Executive shall not hire, directly or a threatened breach by Seller indirectly, on the Executive’s behalf or SED on behalf of any such obligationsother person, Buyer or DSS shallas an employee, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 should ever be adjudicated to exceed the time, geographic, product or serviceconsultant, or other limitations permitted by applicable Law in any jurisdictionotherwise, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdictionperson.
Appears in 1 contract
Samples: Employment Agreement (Hornbeck Offshore Services Inc /La)
Non-Competition; Non-Solicitation. (a) For a period of five sixty (560) years months commencing on the Closing Date (the “Restricted Period”), neither of Seller nor SED shallshall not, nor and shall not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company GroupCompany. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates Seller may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates Seller is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own [5% %] or more of any class of securities of such Person.
(b) During the Restricted Period, neither of Seller nor SED shallshall not, nor and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee 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 5.06(b5.07(b) shall prevent Seller, SED Seller or any of their its Affiliates from hiring (i) any employee whose employment has been terminated by the Company Group or BuyerBuyer or (ii) after [180] days from the date of termination of employment, any employee whose employment has been terminated by the employee.
(c) During the Restricted Period, neither of Seller nor SED shallshall not, nor 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 any member of the Company GroupCompany.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of this Section 5.06 5.07 would give rise to irreparable harm to Buyer and DSSBuyer, 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 SED of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 5.07 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 5.07 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 5.07 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Samples: Limited Liability Company Purchase Agreement (HomeSmart Holdings, Inc.)
Non-Competition; Non-Solicitation. (a) For a period of five four (54) years commencing on following the Closing Date (and in the “Restricted Period”case of Section 7.6(a)(v) indefinitely), neither or during the Members’ term of Seller nor SED shallemployment with the Company, nor whichever is greater, each Member agrees that he or she shall permit any of its Affiliates tonot, directly or indirectlyindirectly through any Person or any Affiliate thereof, entity or contractual arrangement:
(i) engage in the Business or assist others any segment thereof anywhere in engaging the United States of America (the “Restricted Territory”);
(ii) acquire, own, manage, operate, join, control, or participate in the ownership, management, operation or control of, consult with or perform services for, lend money or capital to, invest capital in, or be connected in any manner with, including, without limitation, as a partner or through stock or equity ownership in, any business or Person that engages in the Business or any segment thereof anywhere in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or ;
(iii) intentionally interfere in any material respect with the business relationships (whether formed prior solicit, offer employment to or after the date of this Agreement) between hire any member individual that is an employee or consultant of the Company Group and customers or suppliers otherwise induce or attempt to induce (whether for their own account or for the account of any member other Person) any individual that is an employee or consultant of the Company Group. Notwithstanding to leave the foregoing clause (ii), Seller, SED or their Affiliates may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates is not a controlling Person of, or a member of a group which controls, such Person and do not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.
(b) During the Restricted Period, neither of Seller nor SED shall, nor shall permit any of its Affiliates to, directly or indirectly, hire or solicit any employee employ 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 employeesCompany; provided, however, that nothing in this Section 5.06(b7.6(a)(ii) shall prevent Sellerprohibit any such party from: (i) using general solicitations (including through search firms) not targeted at employees of the Company, SED or employing any person who responds to such solicitation; (ii) hiring, employing or discussing employment with any person who contacts such party independently without any solicitations by such party or (iii) soliciting any person who has left the employment of the Company at least twelve (12) months prior to such party soliciting such person;
(iv) induce or attempt to induce any customer, supplier, licensee or other business relation of the Company to cease doing business with the Company or in any way interfere with the relationship between any such customer, supplier, licensee or business relation and the Company; or
(v) disparage Buyer or any of its Affiliates (including, after the Closing, the Company) in any way that could adversely affect the goodwill, reputation or business relationships of Buyer or any of its Affiliates with the public generally, or with any of their Affiliates customers, suppliers or employees.
(b) Each Member acknowledges that if it breaches any obligation under this Section 7.6, Buyer will suffer immediate and irreparable harm and damage for which money alone cannot fully compensate, and each Member therefore agrees that upon such breach or threatened breach, Buyer shall be entitled to seek a temporary restraining order, preliminary injunction, permanent injunction or other injunctive relief, without posting any bond or other security, barring the other party from hiring violating any employee whose employment has been terminated by such provision. This Section 7.6(b) shall not be construed as an election of any remedy, or as a waiver of any right available to Buyer under this Agreement or the Company Group or BuyerLaw, including the right to seek damages for a breach.
(c) During the Restricted Period, neither of Seller nor SED shall, nor shall 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 any member of the Company Group.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of this Section 5.06 would give rise to irreparable harm to Buyer and DSS, 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 SED of any such obligations, Buyer or DSS 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 If a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges determines that the restrictions contained in character, duration or geographical scope of the provisions of this Section 5.06 7.6 are unreasonable, it is the 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 any Member’s conduct that are reasonable in light of the circumstances and as are necessary to protect assure to Buyer the legitimate interests benefits of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In If, in any judicial proceeding, a court shall refuse to enforce all of the event that any covenant contained in separate covenants of this Section 5.06 should ever be adjudicated 7.6 because taken together they are more extensive than necessary to exceed assure to Buyer the timeintended benefits of this Agreement, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court it is expressly empowered understood and agreed by the parties that the provisions hereof that, if eliminated, would permit the remaining separate provisions to reform be enforced in such covenantproceeding, and such covenant shall be deemed reformedeliminated, in for the purposes of such jurisdiction to the maximum timeproceeding, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in from this Section 5.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdictionAgreement.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) For a period of five (5) years commencing on the Closing Date (the “Restricted Period”), neither of Seller nor SED shallshall not, nor and shall not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company GroupCompany. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates Seller may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates Seller is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.
(b) During the Restricted Period, neither of Seller nor SED shallshall not, nor and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee 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 5.06(b5.07(b) shall prevent Seller, SED Seller or any of their its Affiliates from hiring (i) any employee whose employment has been terminated by the Company Group or BuyerBuyer or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee.
(c) During the Restricted Period, neither of Seller nor SED shallshall not, nor 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 any member of the Company GroupCompany.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of this Section 5.06 5.07 would give rise to irreparable harm to Buyer and DSSBuyer, 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 SED of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 5.07 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 5.07 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 5.07 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Samples: Stock Purchase Agreement (Nuverra Environmental Solutions, Inc.)
Non-Competition; Non-Solicitation. (a) For a period of five (5) years commencing on Each Restricted Party agrees, that during the Closing Date (the “Restricted Period”), neither of Seller nor SED shallsuch Restricted Party shall not, nor and shall not permit any of its Affiliates to, directly or indirectly, (i) engage in for any reason, for its own account, or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in on behalf of, or together with or through, any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacityother Person, including whether as a partner, shareholder, member, employee, principal, agent, trustee shareholder, creditor, participant, partner, promoter, director, officer, manager, member, equity owner, employee, consultant, sales representative, insurance agent or consultantbroker or otherwise: own, control, manage, or participate in the ownership, control or management of, or render services or advice to, or have a financial interest in, or lend its name to, any business or Person (or any Affiliate of a Person that is) engaged in, or that is undertaking to become engaged in, in whole or in part any Restricted Business within the Territory; or (iiiprovided, however, that a Restricted Party shall not be prohibited by this Section 6.06(a)(i) 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 clause (ii), Seller, SED or their Affiliates may ownfrom owning, directly or indirectly, solely as an a passive investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates such Restricted Party is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 53% or more of any class of securities of such Person.
; hire, solicit or retain (bwhether as an employee, consultant or otherwise) During the Restricted Period, neither of Seller nor SED shall, nor shall permit any of its Affiliates to, directly or indirectly, hire or solicit any employee or independent contractor of the Company Group or of Buyer or of Xxxxx or of their respective Affiliates (including, for the avoidance of doubt, individuals who become employees or independent contractors following the date hereof and/or following the Closing Date) or encourage any such employee individual to leave such employment sever or otherwise alter its relationship with the Company or with Buyer or with Xxxxx or with any of their respective Affiliates or hire or retain any such employee individual who has left such employmentemployment or ceased to provide services to the Company, except pursuant to a general solicitation which is not directed specifically to any such employeesBuyer, Xxxxx and/or their respective Affiliates; provided, that nothing in this Section 5.06(b) shall prevent Seller, SED or any of their Affiliates from hiring any employee whose employment has been terminated by the Company Group or Buyer.
(c) During the Restricted Period, neither of Seller nor SED shall, nor shall permit any of its Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients Person that such Restricted Party knows or customers of any member reasonably should know is a (actual or prospective) client, customer, employee, consultant, licensor, licensee, service provider, supplier, vendor or strategic partner of the Company Group or potential clients of Buyer or customers of any member Xxxxx or of the Company Group their respective Affiliates for purposes of diverting their business or services from the Company, from Buyer, from Xxxxx and/or from their respective Affiliates or taking any member action that has (or is reasonably likely to have) the effect of so diverting any such business or services; or interfere with the business relationships (whether formed prior to or after the date of this Agreement) between Buyer or the Company Group.
(d) or Xxxxx or any of their respective Affiliates and any of their respective clients, customers, employees, consultants, licensors, licensees, service providers, suppliers, vendors or other Persons with whom they have a business relationship or take any action which is reasonably likely to damage or destroy the goodwill and esteem of Buyer or Xxxxx or the Company or their respective Affiliates with any such Persons. Each of Seller and SED Restricted Party acknowledges that a breach or threatened breach of this Section 5.06 6.06 would give rise to irreparable harm to the Company, Buyer and DSSXxxxx, 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 SED a Restricted Party of any such obligations, each of the Company, Buyer or DSS and Xxxxx 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).
. In the event that any Seller Principal (eor any Affiliate thereof, including Seller) breaches any of the covenants contained in this Section 6.06, and does not fully and completely cure such breach to Buyer’s reasonable satisfaction within ten (10) days following written notice to such Seller Principal, at Buyer’s election, Buyer may cause the Seller to immediately forfeit any remaining Share Consideration payable to Seller hereunder that has not yet been paid to Seller as of such date, which Share Consideration may be retained by Xxxxx. In the event that KR (or any of his Affiliates) breaches any of the covenants contained in this Section 6.06, and does not fully and completely cure such breach to Buyer’s reasonable satisfaction within ten (10) days following written notice to KR, at Buyer’s election, Buyer may cause KR to immediately forfeit any remaining Share Consideration payable to KR hereunder that has not yet been paid to him as of such date, which Share Consideration may be retained by Xxxxx. In view of the difficulty of predicting with certainty the likely damages from a breach of a Restricted Party’s obligations under Section 6.06(a), the Restricted Parties agree that the amount set forth in this Section 6.06(c) is a reasonable provision for liquidated damages and not a penalty. Notwithstanding anything to the contrary contained herein, an award of liquidated damages hereunder shall be in addition to and not in limitation of any injunctive or equitable relief, or other rights or remedies to which Buyer or the Company is or may be entitled at law or in equity under this Agreement or any other agreement between or among the Restricted Parties and the Company, and an award of liquidated damages hereunder shall not preclude Buyer or the Company from obtaining injunctive or other equitable relief as appropriate for any breach of Section 6.06(a). Each of Seller and SED Restricted Party acknowledges that the restrictions contained in this Section 5.06 6.06 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 6.06 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 6.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction. Each of the Restricted Parties agrees that the applicable period of each covenant contained in this Section 6.06 shall be tolled during any period of time in which a Restricted Party is in breach or violation of the terms of this Section 6.06.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Fallon Doug)
Non-Competition; Non-Solicitation. (a) For a period of five two (52) years commencing on the Closing Date (the “Restricted Period”), neither of Seller nor SED shallshall not, nor and shall not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the TerritoryTerritory (other than on behalf of a member of the Company Group); (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company Group. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates Seller may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates Seller is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.
(b) During the Restricted PeriodPeriod in the Territory, neither of Seller nor SED shallshall not, nor and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee 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 5.06(b5.07(b) shall prevent Seller, SED Seller or any of their its Affiliates from hiring (i) any employee whose employment has been terminated by the Company Group or BuyerBuyer or (ii) after one hundred and eighty (180) days from the date of termination of employment, any employee whose employment has been terminated by the employee.
(c) During the Restricted Period, neither in the Territory, Seller shall not, and shall not permit any of its Affiliates to, directly or indirectly, hire, associate with, or solicit any Producer that has a then current business relationship with any member of the Company Group, or that has had a business relationship with any member of the Company Group in the preceding twelve (12) month period, or encourage any such Producer to cease working or associating with the Company Group, except pursuant to a general solicitation which is not directed specifically to any such Producer.
(d) During the Restricted Period, and in the Territory, Seller nor SED shallshall not, nor 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 any member of the Company Group.
(de) Each of Seller and SED acknowledges that a breach or threatened breach of this Section 5.06 5.07 would give rise to irreparable harm to Buyer and DSSBuyer, 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 SED of any such obligations, Buyer or DSS 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).
(ef) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 5.07 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 5.07 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, including the severing or removal of any term or provision deemed invalid so that the remaining terms and provisions can be enforced, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 5.07 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Samples: Stock Purchase Agreement (Security National Financial Corp)
Non-Competition; Non-Solicitation. Except as otherwise set forth in a subscription agreement for Units or other joinder agreement hereto executed by the Company and a Minority Investor, each Minority Investor that is an employee, officer, director or consultant of the Company agrees as follows:
(a) For such Minority Investor agrees that until the eighteen month anniversary of the date of termination of such Minority Investor’s employment or other engagement with the Company and all of its subsidiaries, without the prior written consent of the Company, the Minority Investor will not, anywhere in the world, directly or indirectly, either as principal, manager, agent, consultant, officer, stockholder, partner, investor, sponsor, lender or employee, or in any other capacity carry on, be engaged in or employed by or be a period consultant to or have any financial interest in, any Person which is in competition with the Company (as described in Section 6.04(b)). During such period, the Minority Investor agrees that, without the prior written consent of five the Company (5) years commencing and other than on behalf of the Company), the Minority Investor shall not, on the Closing Date (the “Restricted Period”), neither Minority Investor’s behalf or on behalf of Seller nor SED shall, nor shall permit any of its Affiliates toPerson, directly or indirectly, (i) engage in solicit or assist 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 in engaging to induce or attempt to induce any such Person to (A) terminate such Person’s employment with such employer (in the Restricted Business case of an employee) or (B) cease providing his or her services to such entity (in the Territory; case of a consultant), (ii) have an interest in solicit or attempt to solicit, or assist or encourage any Person that engages directly in soliciting or indirectly 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 Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; Company or (iii) intentionally interfere whether in written or oral form, make any material statement that libels, slanders or disparages the Company or any of its subsidiaries, with respect with to any of the business relationships (whether formed prior to past or after the date of this Agreement) between any member present activities of the Company Group and customers or suppliers of any member of the Company Group. Notwithstanding the foregoing clause (ii), Seller, SED or their Affiliates may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates is its subsidiaries; provided, however, that this shall not prevent the Minority Investor from making statements about the Company or any of its subsidiaries in connection with a controlling Person of, suit or a member claim brought by the Minority Investor against the Company or any of its subsidiaries or the defense of a group which controls, such Person and do not, claim made by Company or any of its subsidiaries against the Minority Investor or as otherwise required by law in the aggregate, directly or indirectly, own 5% or more of connection with any class of securities of such Personproceeding.
(b) During For purposes of this Section 6.04, a Person shall be deemed to be in competition with the Restricted Period, neither of Seller nor SED shall, nor shall permit Company if such Person is involved in any business conducted by the Company or any of its Affiliates to, directly subsidiaries on the date the Minority Investor’s employment or indirectly, hire other engagement terminates or solicit with respect to which the Company has taken any employee substantial steps to engage in during the period of the Company Group or encourage any such employee to leave such Minority Investor’s employment or hire any other engagement by the Company that such employee who has left such employment, except pursuant to a general solicitation which Minority Investor is not directed specifically to any such employeesaware of; provided, however, that nothing in this Section 5.06(b) 6.04 shall prevent Seller, SED be construed so as to preclude the Minority Investor from investing in any publicly or privately held company provided that the Minority Investor’s beneficial ownership or rights to ownership of any class of their Affiliates from hiring any employee whose employment has been terminated by such company’s securities does not exceed 2% of the Company Group or Buyeroutstanding securities of such class.
(c) During Such Minority Investor agrees that the Restricted Periodcovenants set forth in this Section 6.04 are reasonable covenants under the circumstances, neither of Seller nor SED shall, nor shall permit any of its Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers and further agrees that if in the opinion of any member court of competent jurisdiction such restraint is not reasonable in any respect, such court shall have the right, power and authority to excise or modify such provision or provisions of these covenants as such court shall deem necessary to cause the provisions hereof (as modified) to be valid and enforceable and to enforce the remainder of the Company Group or potential clients or customers covenants as so amended. Such Minority Investor agrees that any breach of any member covenant contained in this Section 6.04 would irreparably injure the Company. Accordingly, such Minority Investor agrees that the Company, in addition to pursuing any other remedies it may have in law or in equity, shall be entitled to a decree or order of the Company Group for purposes of diverting their business or services specific performance and an injunction against such Minority Investor from any member court having jurisdiction over the matter, restraining any further violation of the Company Groupthis Section 6.04 without proof of actual damages.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of The obligations in this Section 5.06 would give rise 6.04 are in addition to irreparable harm to Buyer and DSS, 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 SED provisions of any employment agreement, non-competition agreement, non-solicitation agreement or similar agreement between the Minority Investor and the Company or any Affiliate of the Company in effect (such obligations, Buyer or DSS shallcollectively with the obligations set forth in this Section 6.04, 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 bondthe “Protective Agreements”).
(e) Each If the Minority Investor breaches the noncompetition, nonsolicitation or confidentiality terms of Seller and SED acknowledges that the restrictions contained in this Section 5.06 are reasonable and necessary Protective Agreements, any repurchase, purchase or other payment or delivery made pursuant to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate during the transactions contemplated by this Agreement. In two year period prior to the event that any covenant contained in this Section 5.06 should ever be adjudicated to exceed breach of 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 Protective Agreements shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Lawrescinded. The covenants contained Company shall notify the Minority Investor in this Section 5.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability writing of any such covenant rescission within 60 days of the date it acquires actual knowledge of such breach. Within 20 days after receiving such a notice from the Company, the Minority Investor shall pay to the Company the amount of any gain realized or provision payment received as written shall not invalidate a result of the repurchase, purchase or render unenforceable the remaining covenants other payment 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 jurisdictiondelivery pursuant to this Agreement.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Grede Wisconsin Subsidiaries LLC)
Non-Competition; Non-Solicitation. (a) For Each Restricted Stockholder and her, his or their Affiliates over which she, he or they has/have control shall not, directly or indirectly, for a period of [***] after the Closing Date, engage (whether as owner, employee, operator, manager, consultant or otherwise) anywhere in the world in any business that competes with the Business as conducted by the Company as of the Closing Date. Notwithstanding the foregoing, each Restricted Stockholder and her, his or their Affiliates shall not be prohibited by this Section 6.5(a) from (i) acquiring or owning less than five percent (5%) years commencing of the outstanding voting power of any publicly traded company on a passive basis; (ii) work for a Person (a) that is not primarily engaged in the Closing Date Business and (b) for which the “Business does not generate a significant portion of such Xxxxx’x aggregate revenue; provided that (1) the Restricted Period”)Stockholder does not personally participate in the Business and (b) the services provided by the Restricted Stockholder to such Person do not primarily relate to or assist with the Business; or (iii) work as a professor of the for a college, neither of Seller nor SED shalluniversity or other academic institution.
(b) Each Restricted Stockholder and her, his or their Affiliates over which she, he or they has/have control shall not, nor shall she, he or they permit any of its her, his or their Affiliates to, directly or indirectly, for a period of [***] after the Closing Date, (i) engage in other than for the benefit of the Company or assist others in engaging in the Restricted Business in Purchaser, divert or take away any business from or with, any customer, supplier, agent or distributor of the Territory; Company, or solicit, call upon, or attempt to induce any such customer, supplier, agent or distributor to terminate or adversely affect or materially reduce their business relationship with the Company, or (ii) have contact, solicit or approach for the purpose of offering employment to, or hire (whether as 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, principalconsultant, agent, trustee independent contractor or consultant; otherwise), any employee employed 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 member of full-time consultant engaged by the Company Group and customers during the [***] period preceding such contact, solicitation or suppliers of any member of the Company Group. Notwithstanding approach (provided, that the foregoing clause (ii)shall not prohibit each Restricted Stockholder or her, Seller, SED his or their Affiliates may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates is from making a general solicitation not a controlling Person of, or a member of a group which controls, such Person and do not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.
(b) During the Restricted Period, neither of Seller nor SED shall, nor shall permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of the Company Group or encourage targeting 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 5.06(b) shall prevent Seller, SED or any of their Affiliates from hiring any employee whose employment has been terminated by the Company Group or Buyerconsultant).
(c) During Each Restricted Stockholder, for himself and on behalf of her, his or their Affiliates, agrees that the Restricted Period, neither of Seller nor SED shall, nor shall 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 scope 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 any member of the Company Group.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of restrictive provisions set forth in this Section 5.06 would give rise 6.5 are reasonable with respect to irreparable harm to Buyer subject matter, time and DSS, for which monetary damages would not be an adequate remedy, scope and hereby agrees that in the event of a breach or a threatened breach by Seller or SED of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges that the restrictions provisions contained in this Section 5.06 6.5 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter the Purchaser’s entering into this Agreement and consummate but for the transactions contemplated by provisions contained in this Section 6.5, the Purchaser would not have entered into this Agreement. In the event that any covenant contained court determines that the subject matter, duration or geographic scope, or all of the foregoing, is unreasonable and that such provision is to that extent unenforceable, the Purchaser and each Restricted Stockholder, for itself or himself and on behalf of each of her, his or their or its Affiliates, agree that the provision shall remain in full force and effect for the greatest time period and for the broadest subject matter and in the greatest area, as the case may be, that would not render it unenforceable. It is specifically understood and agreed that any breach of the provisions of this Section 6.5 by each Restricted Stockholder or any of her, his or their Affiliates will result in irreparable injury to the Purchaser, that the remedy at law alone will be an inadequate remedy for such breach and that, in addition to any other remedy it may have, the Purchaser shall be entitled to enforce the specific performance of this Section 6.5 by such Restricted Stockholder and her, his or their Affiliates through both temporary and permanent injunctive relief without the necessity of proving actual damages and without posting a bond, but without limitation of the Purchaser’s right to damages and any and all other remedies available to the Purchaser, it being understood that injunctive relief is in addition to, and not in lieu of, such other remedies. Should a court of competent jurisdiction determine that Restricted Stockholder has breached Section 6.5(a) or 6.5(b) above, the term of the restrictions set forth in Section 6.5(a) or 6.5(b), as applicable, shall be tolled by the duration of such breach. For the avoidance of doubt, the parties hereto acknowledge and agree that the restrictions set forth in this Section 5.06 should ever be adjudicated 6.5 are independent of and in addition to exceed any restrictions set forth in the timeSigning Consultant Documents and/or any other Contract between the Purchaser or any of its Affiliates (including the Company), 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 on the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereofone hand, and any Restricted Stockholder, on the other hand (including the remainder of this Agreement). Each Restricted Stockholder acknowledges and agrees that she, he or they has/have received, or is receiving, substantial consideration in connection with the Transactions. No breach by Purchaser or any of its Affiliates of any contractual or other obligations it or they have to any Stockholder shall constitute a defense, or a limitation of, the enforcement of this Section 6.5 against such invalidity or unenforceability Stockholder. The prevailing party in any jurisdiction Proceeding to enforce this Section 6.5, in addition to all other remedies available at law, in equity, and under contract, shall not invalidate or render unenforceable be entitled to an award against the other party to cover the costs of such covenant or provision in any other jurisdictionProceeding, including reasonable attorneys’ fees and expenses.
Appears in 1 contract
Samples: Stock Purchase Agreement (Lexeo Therapeutics, Inc.)
Non-Competition; Non-Solicitation. (a) For a period of five (5) years commencing on the Closing Date (the “Restricted Period”), neither of each Seller nor SED shallshall not, nor and shall not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company Group. Notwithstanding the foregoing clause (ii)Company; provided, Sellerhowever, SED or their Affiliates that a Seller may own, directly or indirectly, solely as an a passive investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates such Seller (x) is not a controlling Person of, or a member of a group which controls, such Person and do Person, (y) does not, in the aggregate, directly or indirectly, own 5% two percent (2%) or more of any class of securities of such Person, and (z) does not actively engage in the business of such Person or provide any information to such Person in violation of Section 5.02.
(b) During the Restricted Period, neither of each Seller nor SED shallshall not, nor and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee 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 5.06(b5.03(b) shall prevent Seller, SED a Seller or any of their its Affiliates from hiring (i) any employee whose employment has been terminated by the Company Group or Buyer.Buyer or (ii) after one hundred eighty (180) days from the date of termination of employment, any employee whose employment has been terminated by the employee
(c) During the Restricted Period, neither of each Seller nor SED shallshall not, nor 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 the Company, or to encourage any member of such Person to cease or reduce their business with the Company GroupCompany.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of this Section 5.06 5.03 would give rise to irreparable harm to Buyer and DSSBuyer, 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 SED of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 5.03 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 5.03 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 5.03 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
(f) Nothing in this Section 5.03 shall impair any broader or more extensive covenant under any employment, independent contractor, sales representative, consulting or confidentiality, non-competition, or other similar agreement between any Seller, on the one hand, and Buyer, the Company, or any other Affiliate of Buyer, on the other hand, including without limitation the Non-Competition and Non-Solicitation Agreements. For purposes of this Section 5.03, all references to Buyer shall be deemed to include any and all Affiliates of Buyer.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) For a period of five (5) years commencing on During the Closing Date (the “Restricted Period”), neither each of Seller nor SED shallthe Sellers shall not, nor and shall not permit any of its their respective Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company Groupsuch Company. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates a Seller may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates such Seller is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 52% or more of any class of securities of such Person.
(b) During the Restricted Non-solicitation Period, neither each of Seller nor SED shallthe Sellers shall not, nor and shall not permit any of its their respective Affiliates to, directly or indirectly, hire or solicit any employee of the any Company Group or encourage any such employee to leave such employment or hire any such employee who has left such employmentemployment (except for any employee who was previously terminated by any Company or the Buyer, to whom this Section 6.03(b) shall not apply), except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 5.06(b) shall prevent Seller, SED or any of their Affiliates from hiring any employee whose employment has been terminated by the Company Group or Buyer.
(c) During the Restricted Period, neither each of Seller nor SED shallthe Sellers shall not, nor and shall not permit any of its their respective 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 or prospective business from any member of the Company GroupCompany.
(d) Each of Seller and SED the Sellers acknowledges that a breach or threatened breach of this Section 5.06 6.03 would give rise to irreparable harm to Buyer and DSSthe 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 SED of any such obligations, the Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED the Sellers acknowledges that the restrictions contained in this Section 5.06 6.03 are reasonable and necessary to protect the legitimate interests of the Buyer and DSS and constitute a material inducement to each of the Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 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 5.06 6.03 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Limbach Holdings, Inc.)
Non-Competition; Non-Solicitation. (a) For a period of five two (52) years commencing on the Closing Date (the “Restricted Period”), neither of Seller nor SED shallshall not, nor and shall not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in cause, induce or encourage any material respect actual or prospective client, customer, supplier or licensor of the Business (including any existing or former client or customer of Seller and any Person that becomes a client or customer of the Business after the Closing), or any other Person who has a material business relationship with the business relationships (whether formed prior Business, to terminate or after the date of this Agreement) between modify any member of the Company Group and customers such actual or suppliers of any member of the Company Groupprospective relationship. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates Seller may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates Seller is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own five percent (5% %) or more of any class of securities of such Person.
(b) During the Restricted Period, neither of Seller nor SED shallshall not, nor and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of person who is offered employment by Buyer or is or was employed in the Company Group 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 5.06(b6.07(b) shall prevent Seller, SED Seller or any of their its Affiliates from hiring (i) any employee whose employment has been terminated by Buyer or (ii) after one hundred and eighty (180) days from the Company Group date of termination of employment, any employee who voluntarily terminates his or Buyerher own employment.
(c) During the Restricted Period, neither of Seller nor SED shall, nor shall 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 any member of the Company Group.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of this Section 5.06 6.07 would give rise to irreparable harm to Buyer and DSSBuyer, 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 SED of any such obligations, Buyer or DSS 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).
(ed) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 6.07 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 6.07 should ever be adjudicated to exceed the time, geographic, product or service, 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, service or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 6.07 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) For a period of five (5) two years commencing on the Closing Date (the “Restricted Period”), neither of each Seller nor SED shallParty shall not, nor and shall not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company GroupCompany. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates each Seller Party may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange anywhere in the world if none of Seller, SED or any of their Affiliates such Seller Party is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.
(b) During the Restricted Period, neither of each Seller nor SED shallParty shall not, nor and shall not permit any of its such Seller Party’s Affiliates to, directly or indirectly, hire or solicit any employee 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 5.06(b5.08(a) shall prevent Seller, SED any Seller Party or any of their Affiliates from hiring (i) any employee whose employment has been terminated by the Company Group or BuyerBuyer or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee.
(c) During the Restricted Period, neither of no Seller nor SED Party shall, nor and shall not permit any of its their 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 any member of the Company GroupCompany.
(d) Each of Seller and SED Party acknowledges that a breach or threatened breach of this Section 5.06 would give rise to irreparable harm to Buyer and DSS, 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 SED of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.Section
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) 6.6.1 For a period of five (5such applicable period, the “Restricted Period”) years commencing on the Closing Date and ending on the fifth (5th) anniversary of the “Restricted Period”)Closing Date, neither of Seller nor SED shallshall not, nor and shall not permit any of its Seller’s Affiliates to, directly or indirectly, within the Territory, (ia) engage in or assist others in engaging in the Restricted Business in the TerritoryCompetitive Business; (iib) have an interest in any Person that engages directly or indirectly in the Restricted Competitive Business in the Territory in any capacity, including as a partner, shareholderequityholder, member, employee, principal, agent, trustee or consultant; or (iiic) intentionally interfere in solicit, cause, induce or encourage any material respect with the business relationships (whether formed prior to actual or after the date of this Agreement) between any member prospective client, customer, supplier, manufacturer or licensor of the Company Group and customers in the Competitive Business (including any existing or suppliers of any member former client or customer of the Company Groupor of Seller (relating solely to the Business) as predecessor to the Company), or any other Person who has a material business relationship with the Company with respect to the Competitive Business, to terminate or modify any such actual or prospective relationship. Notwithstanding the foregoing clause foregoing, Seller may (i) own the Class B Common Units in the Company that it will own immediately following the Closing, and (ii), Seller, SED or their Affiliates may ) own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates Seller is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own five percent (5% %) or more of any class of securities of such Person, so long as Seller has no active participation in the business of such Person.
(b) 6.6.2 During the Restricted Period, neither of Seller nor SED shall, nor shall permit any of its Affiliates tonot, directly or indirectly, within the Territory, (i) hire or solicit any employee of Person who is or was in the last twelve (12) months employed by the Company Group (including, for the avoidance of doubt, prior employees of Seller, as predecessor to the Company, working in connection with the Business) or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to (ii) engage or solicit any Person who is or was in the last twelve (12) months engaged as a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 5.06(b) shall prevent Seller, SED or any of their Affiliates from hiring any employee whose employment has been terminated consultant by the Company Group (including, for the avoidance of doubt, a consultant of Seller, as predecessor to the Company, engaged in connection with the Business), where such actions would reasonably be expected to cause such consultant to cease, terminate, or Buyer.
materially adversely change its relationship with the Company, or (ciii) During the Restricted Periodmake statements or representations, neither of Seller nor SED shallor otherwise communicate, nor shall permit any of its Affiliates directly or indirectly, in writing, orally or otherwise, that would reasonably be expected to, directly or indirectly, solicit disparage the Company or enticeany of its Affiliates or any of its officers, directors, managers, members, partners, employees, advisors or businesses, or attempt to solicit its or enticetheir reputations, any clients except in the course of such Person’s employment or customers of any member of engagement with the Company Group or potential clients any Affiliate thereof; provided that these limitations shall not be violated by truthful statements in connection with any legal or customers of any member of administrative proceeding, response to legal process, governmental testimony or filings, or administrative or arbitral proceedings (including, without limitation, pleadings, depositions or other discovery in connection with such proceedings). Notwithstanding the Company Group for purposes of diverting their business foregoing, the solicitation restrictions in this Section 6.6.2 shall not be violated by general advertising or services from any member of general solicitation not specifically targeted at the Company GroupCompany’s employees, consultants, or independent contractors.
(d) Each of 6.6.3 Seller and SED acknowledges that a breach or threatened breach of Section 6.5 or this Section 5.06 6.6 would give rise to irreparable harm to Buyer and DSSthe Investors, 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 SED such party of any such obligations, Buyer or DSS the Investors 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). Further, Seller acknowledges that the Investors’ damages shall not be limited to the amount of the Purchase Price that is allocated to the covenants set forth in Section 6.5 or this Section 6.6 pursuant to Section 8.5.
(e) Each of 6.6.4 Seller and SED acknowledges that the restrictions contained in Section 6.5 and this Section 5.06 6.6 are reasonable and necessary to protect the legitimate interests of Buyer and DSS the Investors and constitute a material inducement to each of Buyer and DSS the Investors to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in Section 6.5 or this Section 5.06 6.6 should ever be adjudicated to exceed the time, geographic, product or service, 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, service or other limitations permitted by applicable Law. The covenants contained in Section 6.5 and this Section 5.06 6.6 and each provision thereof and hereof are severable and distinct covenants and provisions. Notwithstanding anything herein, in the event of any breach by Seller of the covenants set forth in this Section 6.6 the Restricted Period shall be extended by the period of the duration of such breach. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Non-Competition; Non-Solicitation. a. Executive acknowledges and recognizes the highly competitive nature of the businesses of the Company and its affiliates and, accordingly, agrees as follows:
(ai) For During the Employment Term and, for a period of five twenty-four (524) years commencing on months following the Closing Date date Executive ceases to be employed hereunder for any reason (the “Restricted Period”), neither Executive will not directly or indirectly:
(A) engage in any business that competes with the business of Seller nor SED shallthe Company or its affiliates (including businesses which the Company or its affiliates have specific plans to conduct in the future, nor shall permit as to which the Company or its affiliates have taken steps towards commencing and as to which Executive has participated in such planning) in any geographical area where the Company or its affiliates manufactures, produces, sells, leases, rents, licenses or otherwise provides its products or services (a “Competitive Business”);
(B) enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of its Affiliates toany Person) who or which engages in a Competitive Business;
(C) acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have as an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacityindividual, including as a partner, shareholder, memberofficer, employeedirector, principal, agent, trustee or consultant; or
(D) interfere with, or (iii) intentionally attempt to interfere in any material respect with the with, business relationships (whether formed prior to before, on or after the date of this Agreement) between the Company or any member of its affiliates and customers, clients, or suppliers of the Company Group and customers or suppliers of any member of the Company Group. Notwithstanding the foregoing clause its affiliates.
(ii)) Notwithstanding anything to the contrary in this Agreement, Seller, SED or their Affiliates may ownExecutive may, directly or indirectlyindirectly own, solely as an investment, securities of any such Person that engaged in the business of the Company or its affiliates which are publicly traded on any a national securities or regional stock exchange or quotation system or on the over-the-counter market if none of Seller, SED or any of their Affiliates Executive (x) is not a controlling Person person of, or a member of a group which controls, such Person person and do (y) does not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.
(biii) During the Restricted Period, neither Executive will not, whether on Executive’s own behalf or on behalf of Seller nor SED shall, nor shall permit or in conjunction with any of its Affiliates toPerson, directly or indirectly, hire :
(A) solicit or solicit encourage any employee of the Company Group or encourage any such employee its affiliates to leave such the employment of the Company or its affiliates; or
(B) 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 5.06(b) shall prevent Seller, SED or any of their Affiliates from hiring any employee whose employment has been terminated was employed by the Company Group or Buyerits affiliates as of the date of Executive’s termination of employment with the Company or who left the employment of the Company or its affiliates coincident with, or within one year prior to, the termination of Executive’s employment with the Company.
(civ) During the Restricted Period, neither of Seller nor SED shall, nor shall permit any of its Affiliates toExecutive will not, directly or indirectly, solicit or entice, or attempt encourage to solicit or entice, any clients or customers of any member of cease to work with the Company Group or potential clients or customers of its affiliates any member of consultant then under contract with the Company Group for purposes of diverting their business or services from any member of its affiliates.
b. It is expressly understood and agreed that although Executive and the Company Group.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of this Section 5.06 would give rise to irreparable harm to Buyer and DSS, 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 SED of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges that consider the restrictions contained in this Section 5.06 are reasonable and necessary 7 to protect be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that time or territory or any covenant other restriction contained in this Section 5.06 should ever Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be adjudicated rendered void but shall be deemed amended to exceed the timeapply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then if any court of competent jurisdiction finds that any restriction contained in this Agreement is expressly empowered to reform such covenantunenforceable, and such covenant restriction cannot be amended so as to make it enforceable, such finding shall be deemed reformed, in such jurisdiction to not affect the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability enforceability of any such covenant or provision as written shall not invalidate or render unenforceable of 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 jurisdictionrestrictions contained herein.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) For a period of five (5) three years commencing on after the Closing Date (the “Restricted Period”), neither of Seller nor SED shallshall not, nor and shall permit any cause each of its Affiliates toto not, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the any business relationships relationship (whether formed prior to or after the date of this Agreement) between any member of the either Company Group and customers or suppliers of any member of the Company Groupeither Company. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates Seller may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates Seller is not a controlling Person of, or a member of a group which that controls, such Person and do does not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.
(b) During For two years after the Restricted PeriodClosing, neither of Seller nor SED shallshall not, nor and shall permit any cause each of its Affiliates toto not, directly or indirectly, hire or solicit any employee of the either 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 that is not directed specifically to any such employees; provided, that nothing in this Section 5.06(b5.02(b) shall prevent Seller, SED Seller or any of their its Affiliates from hiring (i) any employee whose employment has been terminated by Buyer or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the Company Group or Buyeremployee, other than as a result of solicitation in violation of this Section 5.02.
(c) During the Restricted Period, neither of Seller nor SED shallshall not, nor and shall permit any cause each of its Affiliates toto not, directly or indirectly, solicit or entice, or attempt to solicit or entice, in the Territory, any clients or customers of any member of the either Company Group or potential clients or customers of any member of the either Company Group for purposes of diverting their business or services from any member the Company. Notwithstanding anything to the contrary, Seller is currently a customer of the Company GroupCompanies and nothing herein shall restrict the customer relationship that exists between Seller and the Companies.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of this Section 5.06 5.02 would give rise to irreparable harm to Buyer and DSSBuyer, 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 SED of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 5.02 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 5.02 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 5.02 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (SPI Energy Co., Ltd.)
Non-Competition; Non-Solicitation. (a) For a period of five two (52) years commencing on the Closing Date (the “Restricted Period”), neither of Seller nor SED shallshall not, nor and shall not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company GroupCompany. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates Seller may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates Seller is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own five percent (5% %) or more of any class of securities of such Person.
(b) During the Restricted Period, neither of Seller nor SED shallshall not, nor and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee 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 5.06(b5.07(b) shall prevent Seller, SED Seller or any of their its Affiliates from hiring (i) any employee whose employment has been terminated by the Company Group or BuyerBuyer or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee.
(c) During the Restricted Period, neither of Seller nor SED shallshall not, nor 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 any member of the Company GroupCompany.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of this Section 5.06 5.07 would give rise to irreparable harm to Buyer and DSSBuyer, 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 SED of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 5.07 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 5.07 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 5.07 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) a. For a period of five (5) years commencing on the Closing Date (the “Restricted Period”), neither of each Seller nor SED shallshall not, nor and shall not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company GroupCompany. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates Sellers may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates no Seller is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.
(b) b. During the Restricted Period, neither of Seller nor SED shallSellers shall not, nor and shall not permit any of its their Affiliates to, directly or indirectly, hire or solicit any employee 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 5.06(b5.02(b) shall prevent Seller, SED Sellers or any of their Affiliates from hiring (i) any employee whose employment has been terminated by the Company Group or BuyerBuyer or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee.
(c) c. During the Restricted Period, neither of Seller nor SED shallSellers shall not, nor and shall not permit any of its their 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 any member of the Company GroupCompany.
(d) Each of Seller and SED acknowledges x. Xxxxxxx acknowledge that a breach or threatened breach of this Section 5.06 5.02 would give rise to irreparable harm to Buyer and DSSBuyer, 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 SED of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges x. Xxxxxxx acknowledge that the restrictions contained in this Section 5.06 5.02 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 5.02 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 5.02 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Digirad Corp)
Non-Competition; Non-Solicitation. (a) For a period of five (5) years commencing on During the Closing Date (the “Applicable Restricted Period”), neither of each Initial Seller nor SED shallshall not, nor and shall not permit any of its controlled Affiliates (other than Buyer Parent and its subsidiaries, including the Company and its subsidiaries) to, directly or indirectly, (i) engage in or assist others in engaging in any business that directly competes with the Business as conducted by the Company as of the Closing Date (the “Restricted Business”) anywhere in the United States of America (collectively, the “Territory”); or (ii) other than any current or future ownership interest that RPC or its controlled Affiliates may have in any portfolio companies, have a direct or indirect ownership interest in any Person that engages in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of any member of the Company Group. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED an Initial Seller or their any of its Affiliates may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED such Initial Seller or any of their Affiliates Affiliate is not a controlling Person person of, or a member of a group which controls, such Person and do if such Initial Seller or Affiliate does not, in the aggregate, directly or indirectly, own 52% or more of any class of securities of such Person.
(b) During the Restricted Period, neither of Seller nor SED shall, nor shall permit any of its Affiliates to, directly or indirectly, hire or solicit any employee 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 5.06(b) shall prevent Seller, SED or any of their Affiliates from hiring any employee whose employment has been terminated by the Company Group or Buyer.
(c) During the Restricted Period, neither of Seller nor SED shall, nor shall 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 . For purposes of diverting their business or services from any member of the Company Group.
(d) Each of Seller and SED acknowledges that a breach or threatened breach of this Section 5.06 would give rise to irreparable harm to Buyer and DSS6.7(a), for which monetary damages would not be an adequate remedy, and hereby agrees that in the event no existing or future portfolio company of a breach RPC or a threatened breach by Seller or SED of any such obligations, Buyer or DSS shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(e) Each of Seller and SED acknowledges that the restrictions contained in this Section 5.06 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant its Affiliates shall be deemed reformeda controlled Affiliate of RPC and accordingly no portfolio company of RPC or its Affiliates shall be subject to any restrictions pursuant to this Section 6.7(a). For the avoidance of doubt, in such jurisdiction operating an investment management business whose primary purpose is to the maximum timeacquire and manage Residential Mortgage Assets on behalf of limited partners, geographic, product or servicemembers, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written investors shall not invalidate be considered engaging in, or render unenforceable an activity that competes with, 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 jurisdictionRestricted Business.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) For a period equal to the later of five (5i) years commencing on 24 months after the Closing Date Date, or (ii) 24 months after the date that such Person's and/or such Person's Affiliate’s employment with a Target Company or Affiliate of Buyer shall terminate (the "Restriction Period"), none of Seller, Pegasus, Xxxxxx, Xxxxxxx or Xxxxxxx (all of the foregoing being the “Restricted PeriodSellers”), neither of Seller nor SED ) shall, nor and none of the Restricted Sellers shall permit any of its their Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the a Target Company Group and its customers or suppliers of any member of the Company Groupsuppliers. Notwithstanding the foregoing clause (ii)foregoing, Seller, SED or their Affiliates each Restricted Seller may own, directly or indirectly, solely as an investment, securities of any such Person that are traded on any national securities exchange if none of Seller, SED or any of their Affiliates such Restricted Seller is not a controlling Person of, or a member of a group which controls, such Person and do does not, in the aggregate, directly or indirectly, own 5% or more of any class of securities of such Person.
(b) During the Restricted Restriction Period, neither of Seller nor SED shallRestricted Sellers shall not, nor and shall not permit any of its their Affiliates to, directly or indirectly, hire or solicit any employee of the a Target Company Group or encourage any such employee to leave such employment or hire any such employee who has left such employment, employment except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 5.06(b) shall prevent Seller, SED or any of their Affiliates from hiring any employee whose employment has been terminated by the Company Group or Buyer.
(c) During the Restricted Restriction Period, neither of Seller nor SED shallRestricted Sellers shall not, nor and shall not permit any of its their Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of any member of the a Target Company Group or potential clients or customers of any member of the a Target Company Group for purposes of diverting their business or services from any member of the Company GroupTarget Company.
(d) Each Shareholder and Seller agrees that it shall (i) maintain the strict confidence of, undertake all necessary steps to avoid divulging or disclosing, and preserve and protect the trade secrets, know-how, discoveries, concepts, ideas, market studies, business plans, products, services, costs, processes, techniques, protocols, plans for future development, market analyses, product uses, projects and plans, customer lists, information regarding Target Companies' financial status, customers, profits, profit margins, project costs, pricing information and any other information that may not be known generally or publicly outside of Target Companies (collectively, "Confidential Information") from disclosure to, or access or use by, any person or entity, including any competitor or potential competitor of the Business, and (ii) not use the Confidential Information to compete, directly or indirectly, with the Business, nor attempt to otherwise take commercial advantage of the Confidential Information. Each Shareholder and Seller acknowledges that the Confidential Information constitutes valuable, special and unique property of the business of the Target Companies being acquired by Buyer. Buyer has expressly or impliedly protected such information from unrestricted use by persons not associated with Buyer. Each Shareholder and Seller agrees to return and deliver to Buyer at Closing any and all papers, books, records, documents, memoranda and manuals, including all copies thereof, whether hard or digital copies, belonging or relating to the business of the Target Companies, or containing any Confidential Information.
(e) To the extent that a Shareholder or Seller or their respective Affiliates owns, acquires or controls any part of the Intellectual Property used by or relating to the business of the Target Companies, or any rights therein, such party hereby irrevocably assigns, transfers, conveys and quitclaims all right, title and interest therein and thereto to Target Companies, and agrees to irrevocably assign, transfer, convey and quitclaim any and all future ownership and rights, title and interest therein and thereto to Target Companies. Furthermore, to the extent that some or all of such Intellectual Property are determined not to constitute "works made for hire," as a matter of law, each Shareholder and Seller hereby irrevocably assigns, transfers, conveys and quitclaims to Target Companies, without any separate or additional remuneration or compensation, all right, title and interest in and to any such Intellectual Property, including, without limitation, any copyrights.
(f) Seller and SED acknowledges Shareholders acknowledge that a breach or threatened breach of this Section 5.06 5.07 would give rise to irreparable harm to Buyer and DSSBuyer, 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 SED a Shareholder of any such obligations, Buyer or DSS 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).
(eg) Each of Seller and SED acknowledges Shareholders acknowledge that the restrictions contained in this Section 5.06 5.07 are reasonable and necessary to protect the legitimate interests of Buyer and DSS and constitute a material inducement to each of Buyer and DSS to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.06 5.07 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.06 5.07 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
(h) The parties agree and acknowledge that no portion of the Purchase Price shall be allocated to the covenants set forth in this Section 5.07.
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Samples: Stock Purchase Agreement (Turning Point Brands, Inc.)