We use cookies on our site to analyze traffic, enhance your experience, and provide you with tailored content.

For more information visit our privacy policy.

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

Non-Competition; Non-Solicitation. (a) For a period from the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "Restricted Period"), ST and the Sellers shall not, and shall cause their Affiliates not to, directly or indirectly, (i) own, manage, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in this Section 7.10(a) shall not restrict the acquisition of a passive investment by ST and the Sellers, directly or indirectly, in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damages. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Asset Purchase and Contribution Agreement (Leucadia National Corp)

Non-Competition; Non-Solicitation. (a) For a period from the date hereof until the later of Until the fifth anniversary of the Initial Closing Date (the "Restricted “Non-Competition Period"), ST and the Sellers Seller shall not, and shall cause each of its Subsidiaries and any other Person in which it holds, directly or indirectly, Controlling Equity Interests (such Persons, including their Affiliates respective successors or assigns, are collectively referred to herein as the “Restricted Parties”), not to, directly or indirectly, (i) form, own, manage, operate, join, control or participate (whether as a partner, agent, representative, or otherwise) in the ownership, management, operation or control of any business, whether Person in corporate, proprietorship any territory in which the Company operates immediately prior to Closing or partnership form or otherwise, or has taken reasonable measures as of the Closing Date to begin operating (ii) provide consultative or advice services to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"the “Territory”), that, directly or (y) that otherwise indirectly competes with the business of the Company as it shall exist immediately prior to the Closing Date (including only changes or expansions in the business of the Company or the products sold or distributed by the Company that are expressly contemplated as of the Closing (including, for the avoidance of doubt, the Alternate Site Products)) (a “Competing Business”). In addition, in each case, including any business actually conducted or about to be conducted during the Non-Competition Period, neither Seller nor any Restricted Period Party shall have, without Buyer’s prior written consent, any direct or indirect equity ownership in any such Person, other than as an owner of 2% or less of the outstanding stock of a publicly traded corporation. For the avoidance of doubt, Seller and the Restricted Parties shall not be restricted by the provisions of this Section 6.8 from acquiring (whether through a "Restricted Business")purchase of stock or assets, including but not limited to through a merger or consolidation, or otherwise) any Person that derives less than ten percent (10%) and less than $25,000,000 of its gross revenues (as measured from the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around businessconclusion of any of such Person’s last three completed fiscal years) from Competing Businesses in the aggregate; provided, however, that following an acquisition permitted by this sentence, if such acquired Person derives more than twelve percent (12%) or more than $30,000,000 of its gross revenues from Competing Businesses in the restrictions contained in this Section 7.10(aaggregate during any fiscal year that ends during the Non-Competition Period, Seller or such Restricted Party (as applicable) shall promptly provide written notice to Buyer of such fact and shall divest, as soon as reasonably practicable (but in any event within twelve months of providing such notice), a portion of the business of such Person that engages in Competing Businesses such that less than twelve percent (12%) and less than $30,000,000 of such Person’s gross revenues would be derived from Competing Businesses during the remainder of the Non-Competition Period. Seller shall keep Buyer informed, on a reasonably current basis and in reasonable detail, of the status of Seller’s efforts to divest such business (or portion thereof) in accordance with the preceding proviso and Buyer shall have the right to participate as a potential purchaser in the sale process for such business (or portion thereof) on terms at least as favorable as those being offered to other participants in the sale process. (b) Until the third anniversary of the Closing Date, Seller shall not, and shall cause each of the Restricted Parties not restrict the acquisition of a passive investment by ST and the Sellersto, directly or indirectly, in the aggregate of less than 5% of the outstanding capital stock for itself or on behalf of any companyPerson, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) causesolicit for employment or hire any Company employee; provided, solicit, induce however that any such employee may seek employment with the applicable Person in response to a general advertisement not directed at such employee and the applicable Person may hire any employee who responds to such general advertisement; (ii) approach any supplier or encourage any Employees licensee of the Buyer Company with respect to products or DR Partnership services it provided to leave the Company at any time during the twelve-month period prior to the Closing with the intention of harming the business or operations of the Company by causing such employment Person to decrease or hire, employ or otherwise engage any such individualcease doing business with the Company; or (iiiii) cause, induce or encourage approach any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former Person who is a customer of the Sellers Company at any time during the twelvemonth period prior to the Closing with the intention of harming the business or the Subsidiaries and any Person that becomes a client or customer operations of the Business after Company by causing such Person to purchase the Initial Closing) or products of any other Person who has a material business relationship competitive with the Business, to terminate or modify any such actual or prospective relationshipCompany. (c) The covenants and undertakings contained Seller acknowledges that the provisions set forth in this Section 7.10 relate 6.8 are an integral part of the success of the Company throughout the Territory. If, on or after the Closing Date, Seller or any Restricted Party utilizes its reputation and goodwill in competition with Buyer, Buyer will be deprived of the benefits it has bargained for pursuant to matters this Agreement. In the event that the agreements in this Section 6.8 shall be determined by any court of competent jurisdiction to be unenforceable by reason of extending for too great a time or over too great a geographical area or by reason of it being too extensive in any other respect, it shall be interpreted to extend only over the maximum period of time for which are of it may be enforceable and/or over the maximum geographical area as to which it may be enforceable and/or to the maximum extent in all other respects as to which it may be enforceable, all as determined by such court in such action. (d) If Seller or any Restricted Party breaches or threatens to commit a special, unique and extraordinary character and a violation breach of any of the terms restrictive covenants set forth in this Section 6.8, then the Company and Buyer shall each have the following rights and remedies against Seller or such Restricted Party, each of which shall be independent of the others and severally enforceable, and each of the following rights and remedies is in addition to, and not in lieu of, any other rights and remedies otherwise available to any of them at Law or in equity: the right and remedy to have the restrictive covenants in this Section 6.8 specifically enforced against the Seller or such Restricted Party, including temporary restraining orders and injunctions by any court of competent jurisdiction, it being agreed by Seller that any breach or threatened breach by Seller or any Restricted Party of this Section 7.10 will 6.8 would cause irreparable injury to the Company and Buyer and that money damages would not provide an adequate remedy to the Company or DR PartnershipBuyer. (e) Each of Seller and Buyer intends that the covenants set forth in Sections 6.8(a) and 6.8(b) shall be deemed to be a series of separate covenants, one for each county or province of each and every state, territory or jurisdiction within the Territory, and one for each month of the time periods covered by such covenants. (f) Seller hereby agrees that in the event a court of competent jurisdiction declares there has been a breach by Seller or any Restricted Party of Section 6.8(a) or Section 6.8(b), the amount term of which will any such covenant so breached shall be impossible automatically extended beyond its intended expiration for a period of time equal to estimate or determine and which cannot the duration of such breach. (g) Seller shall be adequately compensated. Accordingly, the remedy at law responsible for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from 6.8 by any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damages. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation its Subsidiaries or any other relevant feature of this Section 7.10 is unreasonablePerson in which Seller holds, arbitrary directly or against public policyindirectly, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable partyControlling Equity Interests.

Appears in 1 contract

Samples: Stock Purchase Agreement (Thoratec Corp)

Non-Competition; Non-Solicitation. (a) For Except as permitted by Section 5.10(b), for a period from of three (3) years after the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "Restricted Period")Date, ST and the Sellers shall not, and shall cause United Parcel Service, Inc. and its Controlled Affiliates not to, engage, directly or indirectly, in the Territory, in any manner whatsoever, including either individually, in partnership, jointly or in conjunction with any other Person, or as principal, agent or shareholder, own any interest in, manage, control or carry on, the provision of technology-driven, non-asset based truckload freight brokerage services (“Covered Business”). (b) Notwithstanding the provisions set forth in Section 5.10(a), Sellers and their Affiliates are permitted at any time to: (i) engage in the Retained Businesses and any reasonable expansion thereof (other than to the Covered Business); (ii) acquire any portion of the assets or equity interests of any Person engaged in the Covered Business so long as the Covered Business accounts for less than thirty-five percent (35%) of the aggregate revenues of such Person and its business (based on the latest available, relevant annual financial statements); provided, that, if the Covered Business accounts for greater than twenty-five percent (25%) of the aggregate revenues of such Person but less than thirty-five percent (35%) of the aggregate revenues of such Person, Sellers and their Affiliates shall, as promptly as reasonably practicable following the date of the closing or consummation of such acquisition (and in any event within 12 months), reduce revenues attributable to the Covered Business below twenty-five percent (25%) of the aggregate revenues of such Person (by divestiture or otherwise); (iii) acquire, hold investments or own, directly or indirectly, any voting stock, capital stock or other voting equity interest of any Person engaged in the Covered Business that has a class of securities listed on a national or international securities exchange, so long as such ownership interest represents not more than three percent (3%) of the aggregate voting power of such Person; (iv) acquire, hold investments or own, directly or indirectly, any capital stock or other equity interest, whether voting or non-voting, of any Person engaged in the Covered Business, which capital stock or other equity interest is received by a Seller or any of their Affiliates as consideration for or otherwise in connection with a disposition or other strategic transaction, so long as: (A) for a period of one (1) year after the Closing Date, the aggregate outstanding ownership interest held by Sellers or any of their Affiliates following any such acquisition represents fifteen percent (15%) or less of the total outstanding ownership interests in such Person, and (B) for a period beginning on the first anniversary of the Closing Date and continuing until the third anniversary of the Closing Date, the aggregate outstanding ownership interest held by Sellers or any of their Affiliates following any such acquisition represents forty-nine percent (49%) or less of the total outstanding ownership interests in such Person; (v) own, transfer or acquire additional ownership interests in any business or entity in which any Seller or any of its Affiliates holds a minority ownership interest as of the Closing Date (it being understood and agreed that Sellers’ obligations under this Section 5.10 shall not apply in any way to any entity in which any Seller or any of its Affiliates holds a minority ownership interest and which is not a Controlled Affiliate of any Seller); provided, that, in the event any such business or entity becomes engaged in the Covered Business, Sellers or Sellers’ Affiliates may only acquire additional ownership interests in such business or entity if the aggregate outstanding ownership interest held by Sellers or any of their Affiliates following any such acquisition represents fifteen percent (15%) or less of the total outstanding ownership interests in such business or entity; (vi) acquire, own or transfer a minority ownership interest in any business or entity that is engaged in the Covered Business in the Territory, provided that (A) the aggregate outstanding ownership interest held by a Seller or any of its Affiliates represents fifteen percent (15%) or less of the total outstanding ownership interests in such business or entity and (B) no Seller nor any of its Affiliates is entitled to nominate a member of the board of directors (or similar governing body) of such entity or take an active part in the management of such business or entity (other than having and exercising the right to appoint an observer to the board of directors (or similar governing body) of such entity); (vii) enter into commercial agreements with any Person engaged in the Covered Business in the Territory, so long as Sellers and their Affiliates do not engage in the Covered Business under the terms of such agreements; and (viii) perform their obligations or exercise their rights under this Agreement and the Ancillary Agreements. (c) For a period of two (2) years after the Closing Date, Sellers shall not, and shall cause United Parcel Service, Inc. and its Controlled Affiliates not to, directly or indirectly, : (i) own(1) solicit, manage, operate, control recruit for employment or participate in the ownership, management, operation hire or control of engage for services any business, whether in corporate, proprietorship or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, in either case that is (x) engaged in production, sale Vice President level (or distribution of telecommunication services (a "Telecommunications Company"), higher) Business Employee or (y) that otherwise competes any other Business Employee who has decision-making authority over pricing with respect to the BusinessUPS business account and who is, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in this Section 7.10(a) shall not restrict the acquisition of a passive investment by ST and the Sellers, directly or indirectly, in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be then employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income the Acquired Companies or consolidated assets) in a Restricted Business so long as ST is not employed bythe Business, or in (2) induce or attempt to induce any way involved such individual to terminate or sever his or her employment with the Restricted Business and does not provideAcquired Companies or Buyer or any of its Affiliates. Notwithstanding the foregoing, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity nothing in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted Period, the prevent Sellers and ST shall not and shall cause or any of their Affiliates not tofrom: (iA) causesoliciting any employee for employment with respect to any public advertisement or posting or other form of general solicitation that is not specifically directed at such Persons or as is conducted by search firms not directed by Sellers or their Affiliates to target such Persons employed or engaged by the Acquired Companies, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave and hiring such employment or hire, employ or otherwise engage any such individualPersons as a result thereof; or (B) soliciting any employee who is terminated by Buyer or any of its Affiliates (including the Acquired Companies) following the Closing, and hiring such Person as a result of such solicitation; or (ii) causesolely with respect to the operations of the Business, induce solicit or encourage attempt to solicit, any material actual customer or prospective client, customer, supplier or licensor of the Business (including any existing with the specific intent to reduce or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material terminate its business relationship with the Business, to terminate Business for the direct or modify any such actual or prospective relationship. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation indirect benefit of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damagesCovered Business. (d) The parties hereto agree Parties hereby acknowledge and agree, on behalf of themselves and each of their Affiliates that, following the Closing, any restrictive covenants contained in agreements between the Acquired Companies, on the one hand, and Sellers or any of their Affiliates (other than the Acquired Companies), on the other hand, will automatically lapse and be of no further effect with respect to any portion of the Retained Businesses or the Business, as applicable, or any Person in which Sellers or their Affiliates or Buyer or its Affiliates, as applicable, no longer own a controlling interest. (e) Following the Closing, if any Person that as of the Closing was a Controlled Affiliate of any Seller subsequently ceases to be a Controlled Affiliate, such Person will (automatically and without the need for any further action) no longer be subject to the restrictive covenants set forth in this Section 5.10. (f) The Sellers acknowledge and agree that the restraints imposed by this Section 5.10 are fair and reasonably required for the protection of the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. If the final judgment of a court of competent jurisdiction in a final nonappealable judgment determines declares that a specified time period, a specified geographical area, a specified business limitation any term or any other relevant feature provision of this Section 7.10 5.10 is unreasonableinvalid or unenforceable, arbitrary the Parties agree that the court making the determination of invalidity or against public policyunenforceability shall have the power to reduce the scope, then duration or area of the term or provision, to delete specific words or phrases or to replace any invalid or unenforceable term or provision with a lesser term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified. In the event of any breach or violation by any Seller or any of its Affiliates of any of the restrictive covenants set forth in this Section 5.10, the time period, geographical area, business limitation period of such covenant shall be tolled until such breach or other relevant feature which violation is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable partyresolved.

Appears in 1 contract

Samples: Purchase Agreement (RXO, Inc.)

Non-Competition; Non-Solicitation. (a) For a period from the date hereof until of two (2) years commencing on the later of the fifth anniversary of the Initial Closing Date and their respective last date of employment with Parent or its subsidiaries (the "Restricted Period"), ST and neither Seller nor the Sellers shall notPrincipals shall, and each shall use best efforts to cause their its Affiliates not to, directly or indirectly, (i) own, manage, operate, control engage in or participate assist others in engaging in the ownership, management, operation or control of any business, whether Restricted Business in corporate, proprietorship or partnership form or otherwise, or the Territory; (ii) provide consultative or advice services to have an interest in any individual or entity, in either case that is Person (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (yother than Talent International CA) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in this Section 7.10(a) shall not restrict the acquisition of a passive investment by ST and the Sellers, engages directly or indirectly, indirectly in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not providein the Territory in any capacity, whether directly including as a partner, shareholder, member, employee, principal, agent, trustee or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (iiiii) 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 the Sellers or the Subsidiaries Seller and any Person that becomes a client or customer of the Business after the Initial Closing) ), or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. Notwithstanding the foregoing, Seller and each Principal may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Seller or such Principal, as applicable, is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own five percent (5%) or more of any class of securities of such Person. This Section 6.3 is fully earned as of the Closing and is a covenant independent of all other undertakings in this Agreement. In the event of any Change of Control of the Buyer or Parent occurs any time prior to the expiration of the Restricted Period, the “Restricted Period” shall be deemed to be a period of one (1) year commencing on the later of the Closing Date and the Principals’ respective last date of employment with Parent or its subsidiaries. (b) During the Restricted Period, neither Seller nor the Principals shall, and each shall use best efforts to cause its Affiliates not to, directly or indirectly, solicit any person who is offered employment by Buyer or Parent pursuant to Section 6.1(a) or is or was employed in the Business during the Restricted Period, or encourage any such employee to leave such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 6.3(b) shall prevent Seller, the Principals or their respective Affiliates from hiring (i) any employee whose employment has been terminated by Buyer or Parent 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) The covenants Seller and undertakings the Principals acknowledge that a breach or threatened breach of this Section 6.3 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Seller, the Principals or their respective Affiliates of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to seek equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). (d) Seller and the Principals acknowledge that the restrictions contained in this Section 7.10 relate 6.3 are reasonable and necessary to matters which are protect the legitimate interests of Buyer and constitute a special, unique material inducement to Buyer to enter into this Agreement and extraordinary character and a violation of any of consummate the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided transactions contemplated by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equityAgreement. In the event that the Buyer or DR Partnership were to seek damages for any breach of covenant contained in this Section 7.106.3 should ever be adjudicated to exceed the time, the portion of the Purchase Price which geographic, product or service or other limitations permitted by applicable Law in any jurisdiction, then any court is allocated by the parties expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the foregoing maximum time, geographic, product or service or other limitations permitted by applicable Law. The covenants contained in this Section 6.3 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not be considered a measure of invalidate or limit on render unenforceable the remaining covenants or provisions hereof, and any such damages. (d) The parties hereto agree that, if invalidity or unenforceability in any court of competent jurisdiction shall not invalidate or render unenforceable such covenant or provision in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable partyjurisdiction.

Appears in 1 contract

Samples: Asset Purchase Agreement (Hudson Global, Inc.)

Non-Competition; Non-Solicitation. (a) For During the period beginning on the Closing Date and ending two (2) years following the Closing (the “Restricted Period”), neither Seller nor AHG, nor any of their respective Subsidiaries (excluding, for the avoidance of doubt, the Company and the Company Subsidiaries), shall directly or indirectly, without the prior written consent of Buyer, engage in, or manage, operate, Control, make an investment in or own an equity interest in, any entity that is engaged in, a period from Competing Business; provided that this Section 6.13(a) shall not prohibit (i) the date hereof until acquisition of an equity interest -69- up to (but not more than) 5% in any publicly-traded Person whose equity interests are listed on a nationally or internationally recognized securities exchange; (ii) the later acquisition of any entity or enterprise engaged in a Competing Business, so long as Seller (or AHG or any other relevant Subsidiary) shall not materially expand such Competing Business during the Restricted Period and so long as Seller (or AHG or any other relevant Subsidiary) gives Buyer an option to purchase the Competing Business at fair market value within six (6) months following the acquisition; (iii) Seller’s or its Subsidiaries’ activities under the Ancillary Agreements or any other Contracts with the Company or any of the fifth anniversary Company Subsidiaries, or (iv) engagement in a Competing Business if (1) Seller (or AHG or any other relevant Subsidiary) or substantially all of its (or AHG’s or any other relevant Subsidiary’s) assets is acquired by an unrelated company or enterprise already involved in a Competing Business that does not derive more than fifteen percent (15%) of its total revenues from such Competing Business, and (2) the Initial purchaser consolidates Seller’s (or AHG’s or any other relevant Subsidiary’s) operations with its own (including the Competing Business). For the avoidance of doubt, in the event that Seller (or AHG or any other relevant Subsidiary) is acquired by a purchaser that either is not engaged in a Competing Business, or which derives more than fifteen percent (15%) of its net revenues from a Competing Business, then the restrictions of this Section 6.13(a) shall continue to apply to Seller, AHG and their respective Subsidiaries, though not to the acquiring company or its other Affiliates. (b) During the period beginning on the Closing Date and ending one (1) year following the "Restricted Period")Closing, ST (A) neither Seller nor AHG shall (and shall each ensure that none of its Subsidiaries (excluding, for the avoidance of doubt, the Company and the Sellers shall not, and shall cause their Affiliates not toCompany Subsidiaries) shall), directly or indirectly, (i) owninduce, manageencourage, operatepersuade or solicit any employee of the Company or any Company Subsidiary to terminate his or her employment with the Company or any Company Subsidiary or accept any other position or employment with Seller, control AHG or participate any of their respective Subsidiaries, and (ii) hire or assist any other Person in the ownershiphiring, managementas an officer, operation or control of any businessemployee, whether in corporateconsultant, proprietorship or partnership form independent contractor or otherwise, any employee of the Company or (ii) provide consultative or advice services any Company Subsidiary who has left such employment, except pursuant to a general solicitation which is not directed specifically to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around businesssuch employee; provided, however, that nothing in this Section 6.13(b) shall prevent Seller, AHG or any of their respective Subsidiaries from hiring any employee whose employment was terminated by the Company or any Company Subsidiary or the employee after 180 days from the date of termination, and (B) Buyer and its Affiliates shall not, and shall ensure that none of their respective Subsidiaries (including, for the avoidance of doubt, the Company and the Company Subsidiaries) shall, directly or indirectly, (i) induce, encourage, persuade or solicit any employee of the Seller or any of Seller Subsidiary (the “Covered Employees”), to terminate his or her employment with the Seller or any of Seller’s Subsidiaries or accept any other position or employment with Buyer or any of its Subsidiaries, and (ii) hire or assist any other Person in hiring, as an officer, employee, consultant, independent contractor or otherwise, any Covered Employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employee; provided, however, that nothing in this Section 6.13(b) shall prevent Buyer, its Affiliates, or any of their respective Subsidiaries from hiring any Covered Employee whose employment was terminated by Seller or any of Seller’s Subsidiaries or the Covered Employee after 180 days from the date of termination. -70- (c) The parties acknowledge that the restrictions contained in this Section 7.10(a) shall not restrict 6.13 are reasonable and necessary to protect the acquisition legitimate interests of each party and constitute a passive investment by ST and the Sellers, directly or indirectly, in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) material inducement to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of each party to enter into this Agreement shall be complied with. (b) For and consummate the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided transactions contemplated by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equityAgreement. In the event that the Buyer or DR Partnership were to seek damages for any breach of covenant contained in this Section 7.106.13 should ever be adjudicated to exceed the time, the portion of the Purchase Price which geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is allocated by the parties expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the foregoing maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 6.13 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not be considered a measure of invalidate or limit on render unenforceable the remaining covenants or provisions hereof, and any such damages. (d) The parties hereto agree that, if invalidity or unenforceability in any court of competent jurisdiction shall not invalidate or render unenforceable such covenant or provision in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.jurisdiction. ARTICLE VII

Appears in 1 contract

Samples: Stock Purchase Agreement

Non-Competition; Non-Solicitation. Employee and Extraction agree to the non-competition and non-solicitation provisions of this Article VIII in consideration for the Confidential Information provided by Extraction to Employee pursuant to Article VI of this Agreement, to protect the trade secrets and confidential information of the Company or its affiliates disclosed or entrusted to Employee by the Company or its affiliates or created or developed by Employee for the Company or its affiliates, to protect the business goodwill of the Company or its affiliates developed through the efforts of Employee and/or the business opportunities disclosed or entrusted to Employee by the Company or its affiliates and as an additional incentive for Extraction to enter into this Agreement. (a) For a period Subject to the exceptions set forth in Section 8.2(b) below, Employee expressly covenants and agrees that during the Prohibited Period %3) Employee will refrain from carrying on or engaging in, directly or indirectly, any Competing Business in the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "Restricted Period"), ST Area and the Sellers shall %3) Employee will not, and shall Employee will cause their Affiliates Employee’s affiliates not to, directly or indirectly, (i) own, manage, operate, join, become an employee of, partner in, owner or member of (or an independent contractor to), control or participate in the ownershipin, managementbe connected with or loan money to, operation sell or control of lease equipment or property to, or otherwise be affiliated with any business, whether individual, partnership, firm, corporation or other entity which engages in corporate, proprietorship or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, a Competing Business in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period Area. (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that b) Notwithstanding the restrictions contained in this Section 7.10(a) shall 8.2(a), Employee or any of Employee’s affiliates may own an aggregate of not restrict more than 2% of the acquisition outstanding stock of any class of any corporation engaged in a Competing Business, if such stock is listed on a national securities exchange or regularly traded in the over-the-counter market by a member of a passive investment by ST and national securities exchange, without violating the Sellersprovisions of Section 8.2(a), provided that neither Employee nor any of Employee’s affiliates has the power, directly or indirectly, to control or direct the management or affairs of any such corporation and is not involved in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% management of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipcorporation. (c) The Employee further expressly covenants and undertakings contained in this Section 7.10 relate agrees that during the Prohibited Period, Employee will not, and Employee will cause Employee’s affiliates not to matters %3) engage or employ, or solicit or contact with a view to the engagement or employment of, any person who is an officer or employee of the Company or any of its affiliates or %3) canvass, solicit, approach or entice away or cause to be canvassed, solicited, approached or enticed away from the Company or any of its affiliates any person who or which are of is a special, unique and extraordinary character and a violation customer of any of such entities during the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of period during which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which Employee is allocated employed by the parties to the foregoing covenant shall not be considered a measure of or limit on such damagesEmployer. (d) The parties hereto agree that, if restrictions contained in Section 8.2 shall not apply to any court product or service that the Company or the Employer provided during Employee’s employment but that the Company or the Employer no longer provides at the Date of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or Termination. (e) Before accepting employment with any other relevant feature person or entity while employed by the Employer during the Prohibited Period, the Employee will inform such person or entity of the restrictions contained in this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable partyArticle VIII.

Appears in 1 contract

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

Non-Competition; Non-Solicitation. (a) For The Company, Parent, Best Buy and Executive acknowledge and recognize the highly competitive nature of the business of Best Buy and its affiliated entities and that Executive's position with Best Buy and access to and use of confidential records and proprietary information of Best Buy and its affiliated entities renders Executive special and unique. Accordingly, in partial consideration of the payment provided in Section 2 hereof, Executive agrees that for a period of two (2) years from and after the date hereof until the later Effective Time of the fifth anniversary of Merger contemplated by the Initial Closing Date Merger Agreement (the "Restricted Period"), ST and the Sellers shall ) he will not, and shall cause their Affiliates not to, directly or indirectly, as a principal, officer, director, shareholder, partner, member, employee, agent or executive or in any other capacity whatsoever, without the prior written consent of Best Buy, do any of the following: (1) engage in or acquire any ownership of any kind in, or become associated with or provide services to (i) ownWal-Mart Stores, manageTarget Corporation, operateCorrefour or Kmart or (ii) any other person, control corporation, partnership, limited liability company, business trust, association or other business entity (each an "Entity") engaged in the retail sale of consumer electronics, computers, music, video or appliances (collectively the "Product Categories") where the revenues from all combined Product Categories during the past fiscal year of such Entity exceeded ten percent (10%) of total revenues with respect to all Product Categories. (2) intentionally and knowingly solicit or attempt to solicit or participate in the ownershipsolicitation of or otherwise advise or encourage any then employee, managementagent, operation consultant or control of any business, whether in corporate, proprietorship or partnership form or otherwiserepresentative of, or vendor or supplier to, Best Buy or any of its affiliated entities to terminate his, her or its relationship therewith; or (ii3) provide consultative solicit or advice services attempt to solicit or encourage any person who is then, or was within the then most recent 12-month period to the knowledge of Executive, an employee, agent, consultant or representative of Best Buy or any of its affiliated entities to become an employee, agent, representative or consultant of or to Executive or any other individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained . Nothing in this Section 7.10(a3(b) shall not restrict the acquisition of a passive prevent Executive from making or holding an investment by ST and the Sellers, directly in securities traded on any national securities exchange or indirectly, traded in the aggregate of less than 5% over-the-counter market, provided said investments do not exceed one percent (1%) of the issued and outstanding capital stock securities of any company, whether publicly traded or privately held, engaged in a Restricted Business one such issuer or, if the ownership of total investment in the securities of Restricted Businesses set forth in Schedule 7.10 issuer is $500,000 or less, up to five percent (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% %) of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business issued and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied withoutstanding securities. (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damages. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Employment Agreement (Best Buy Co Inc)

Non-Competition; Non-Solicitation. (ai) Shinyoung acknowledges that the Company has developed and maintained its goodwill throughout North America (the “Territory”). Shinyoung further acknowledges and agrees that the Company is operating the Business, and Parent or its Affiliates are reasonably expected to continue to operate the Business after the Closing Date, within the Territory. Accordingly, Xxxxxxxxx agrees to the covenants set forth in this Section 2 and acknowledges that Parent would not have entered into the Merger Agreement but for Shinyoung’s agreement to the restrictions set forth in this Section 2. (ii) For a period of five (5) years from and after the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "“Competition Restricted Period"), ST and the Sellers Shinyoung shall not, and shall cause its equityholders that hold more than 25% of the equity interests of Shinyoung and each of its and their respective Affiliates not to, directly or indirectly, : (iA) own, operate, lease, manage, operatecontrol, control engage in, invest in, lend to, own any debt or equity security or interest of, act as a director, manager, partner, contractor, consultant, or advisor to, render services for or to (alone or in association with any Person), or otherwise participate in, or assist any Person (for the avoidance of doubt, other than Parent or its Affiliates) in participating in, the Business anywhere in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, Territory; or (iiB) provide consultative products or advice services to any individual or entity, in either case Person that is (x) engaged in production, sale the Business anywhere in the Territory on terms more favorable than those provided to Parent or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes its Affiliates with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited respect to the prepaid wireless business same or prepaid calling card, carrier wholesale and dial-around businesssimilar products or services; provided, however, that the restrictions contained nothing in this Section 7.10(a) Agreement shall not restrict the acquisition of prohibit Shinyoung or its Affiliates from holding a passive investment by ST beneficial ownership interest of less than two percent (2%) of any class of outstanding publicly traded-equity securities of any entity. (iii) For a period of two (2) years from and after the SellersClosing Date (the “Solicitation Restricted Period”), Shinyoung shall not, and shall cause its equityholders that hold more than 25% of the equity interests of Shinyoung and each of its and their respective Affiliates not to, directly or indirectly: (A) hire, in the aggregate of less than 5% of the outstanding capital stock of engage or solicit for employment or engagement as a consultant any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST Person who is not employed bythen, or in who at any way involved with time during the Restricted Business and does not providesix (6) months prior to the Closing or such date was, whether directly employed or indirectly, any service (whether engaged as consultant, advisor a consultant by Parent or otherwise) to or for the benefit of the Restricted Business or the entity by its Affiliates in connection with such Restricted the Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (bB) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: encourage or induce any such employee or consultant described in clause (iA) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individualconsulting engagement; or (iiC) causeencourage or induce any Person who is then, induce or encourage who at any material actual time during the two (2) years prior to the Closing or prospective clientsuch date was, a customer, supplier supplier, vendor, licensee, licensor, franchisee or licensor other material business relation of Parent or its Affiliates (collectively, the “Company Parties”) to cease doing business with, or modify the way it does business with, Parent or its Affiliates, (D) in any way knowingly or intentionally interfere with the business relationship between any such Company Party and Parent or its Affiliates or (E) solicit any Company Party for a business competitive with the Business (including any existing business selling the same products or former customer services or products and services functionally equivalent to those sold by the Company) in the Territory; provided, however, that nothing in this Agreement shall prohibit Shinyoung or its Affiliates from (I) conducting any solicitations made pursuant to general advertising or through search firms that are not directly specifically at consultants or employees of Parent or its Affiliates or (II) engaging in employee-sharing or consultant-sharing arrangements with the Company consistent with past practice (provided further that, if the Company hires any employee or engages any consultant who was not previously subject to a sharing arrangement with Shinyoung, Shinyoung shall not be permitted engage in a sharing arrangement with such employee or consultant thereafter (until otherwise permitted pursuant to the terms of this Agreement)). (iv) Shinyoung acknowledges that the covenants contained herein are in addition to those set forth in any other agreement it may enter into with Parent or its Affiliates and nothing herein is intended to or shall limit the covenants contained therein or vice versa. Xxxxxxxxx acknowledges that the covenants contained herein represent reasonable restrictions as to scope, duration and geographical area and are necessary to protect and preserve the goodwill acquired by Parent in connection with the Merger. (v) The Parties hereto acknowledge and agree that Parent and each of its Affiliates, successors, and assigns would suffer irreparable harm from a breach of this Section 2 and that money damages would not be an adequate remedy for any such breach. Therefore, in the event a breach or threatened breach of this Section 2, Parent and each of its Affiliates or their respective successors and assigns, in addition to other rights and remedies available at Law or in equity, shall be entitled to seek specific performance, injunctive, and other equitable relief in order to enforce or prevent any breach of the Sellers provisions of this Agreement (without posting a bond or other security). The existence of any claim or cause of action of any Party against Parent, whether predicated upon the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) Merger Agreement or any other Person who has Ancillary Agreement or otherwise, shall not constitute a material business relationship with defense to the Business, to terminate or modify enforcement by Parent of any such actual or prospective relationship. (c) The covenants and undertakings restrictive covenant contained in this Section 7.10 relate 2. The restrictive covenants set forth in this Section 2 are not executory or otherwise subject to matters which are rejection under Chapter 11 of Title 11 of the United States Code. (vi) If the final judgment of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction declares any term or provision of this Section 2 to be invalid or unenforceable, the Parties agree that the court making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration, or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified to cover the maximum duration, scope or area permitted by Law. In addition, in the event of a breach by any breach Party of this Section 7.10 without 2, the necessity Competition Restricted Period or Solicitation Restricted Period, as applicable, shall be tolled with respect to such Party for the provision(s) breached during the period of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition breach continuing until such breach has been duly cured; provided, however, that no such tolling shall occur with respect to any other rights period during which Parent has reason to believe that such breach has occurred and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were has not yet provided written notice thereof to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damagesShinyoung. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Restrictive Covenant Agreement (Car Tech, LLC)

Non-Competition; Non-Solicitation. (a) For a In consideration of the Contemplated Transactions and the payment of the Purchase Price and the assumption of the Assumed Liabilities, Seller and each Shareholder hereby covenant and agree that during the period from beginning on the date hereof until the later of this Agreement and ending on the fifth (5th) anniversary of the Initial Closing Date (the "Restricted Period"”) (except in the case of each Founder, in which case, the Restricted Period for each Founder shall terminate on the later of (i) the termination of the Restricted Period, or (ii) two (2) years after the date such Founder ceases to be employed by Buyer for any reason, and except in the case of the Key Shareholder, in which case, the Restricted Period for the Key Shareholder is eighteen (18) months after the Key Shareholder ceases to be employed by Buyer for any reason), ST and the Sellers shall not, and shall cause neither Seller nor any Shareholder nor their respective Affiliates not to(including any company or other entity controlled by Seller or any Shareholder (whether currently existing or hereafter acquired or formed)) shall, directly or indirectly, in any capacity, render services, engage or have a financial interest in, any activity that shall be competitive with those business activities that constitute part of the Business as operated as of the Closing Date, or the Business as operated by Buyer after the Closing or any other business of Buyer or any of its Affiliates anywhere in the world that Buyer conducts business (the “Restricted Business”), nor shall Seller or any Shareholder assist any Person in such activity. Nothing contained herein shall prohibit or restrict Seller, or any Shareholder, or any of their respective Affiliates from, at any time, owning or acquiring capital stock of any corporation if such stock is publicly traded and listed on any national or regional stock exchange, provided that such investment does not exceed two percent (2%) in the aggregate of the capital stock of such public corporation. Each Shareholder acknowledges and agrees that, while employed by Buyer, such Shareholder will be deemed executive or management personnel of Buyer as defined in the Colorado Revised Statutes. The Key Shareholder’s ownership and operation of Sage Marketing, Inc. for the sole benefit of Buyer shall not be deemed a breach of this Section 6.1(a). (b) In consideration of the Contemplated Transactions and the payment of the Purchase Price and the assumption of the Assumed Liabilities, Seller and each Shareholder hereby covenants and agrees that during the Restricted Period (except in the case of each Founder, in which case, the Restricted Period for such Founder shall terminate on the later of (i) own, manage, operate, control or participate in the ownership, management, operation or control termination of any business, whether in corporate, proprietorship or partnership form or otherwisethe Restricted Period, or (ii) provide consultative or advice services two (2) years after the date the Founder ceases to be employed by Buyer for any individual or entityreason, and except in the case of the Key Shareholder, in either case that which case, the Restricted Period for the Key Shareholder is eighteen (x18) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"months after such Key Shareholder ceases to be employed by Buyer for any reason), neither Seller nor any Shareholder nor their respective Affiliates (including any company or other entity controlled by Seller or any Shareholder (ywhether currently existing or hereafter acquired or formed)) that shall, directly or indirectly, in any capacity, (i) solicit or induce, or attempt to solicit or induce, any Person who accepts employment with Buyer to leave the employ of Buyer or any of its Affiliates for any reason whatsoever, (ii) hire or employ any Person who accepts employment with Buyer, (iii) without the prior written consent of Buyer, employ any Person who does not accept employment with Buyer; (iv) solicit or induce, or attempt to solicit or induce, any customer of the Business to purchase any goods or products with respect to Buyer, (v) otherwise competes impede or interfere in any way with any customer relationship of any of the Business, Buyer or any of their respective Affiliates or (vi) disparage Buyer or its Affiliates in each caseany way, including any business actually conducted or about to be conducted during other than in connection with a dispute between the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around businessParties; provided, however, that the restrictions contained in this Section 7.10(a) shall not restrict the acquisition of a passive investment by ST and the Sellers, directly or indirectly, in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall Seller will not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than deemed to have violated this clause merely as a Telecommunications Company that owns result of publishing an interest (which interest represents no more than 5% employment solicitation of general circulation or maintaining its officers and directors as such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial exist at Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The Seller and each Shareholder acknowledges that the covenants and undertakings contained in Section 6.1(a) and Section 6.1(b) of this Section 7.10 relate to matters which Agreement are of a special, unique unique, unusual and extraordinary character character, which give them peculiar value, the loss of which cannot be reasonably or adequately compensated in an action at law, and that, in the event there is a violation of breach thereof by Seller, any Shareholder or any of the terms of this Section 7.10 their respective Affiliates, Buyer will cause suffer irreparable injury to the Buyer or DR Partnershipharm, the amount of which will be impossible to estimate or determine and which cannot be adequately compensatedascertain. Accordingly, the remedy at law for any breach of this Section 7.10 will Buyer shall be inadequate. Thereforeentitled, the Buyer or DR Partnership will be entitled if it so elects, to an injunction, restraining order or other equitable relief from institute and prosecute proceedings in any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or jurisdiction, either at law or in equity. In the event that the Buyer or DR Partnership were , to seek obtain damages for any breach of this Section 7.10, the portion or to enforce specific performance of the Purchase Price which is allocated by the parties provisions or to the foregoing covenant shall not be considered a measure of or limit on such damages. (d) The parties hereto agree thatenjoin Seller, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation Shareholder or any other relevant feature of this Section 7.10 is unreasonabletheir respective Affiliates, arbitrary or against public policy, then a lesser time period, geographical area, business limitation any company or other relevant feature which is determined entity controlled by such court to be reasonableSeller, not arbitrary from committing any act in breach of any covenant contained in Section 6.1(a) and not against public policy may be enforced against the applicable party.Section 6.1(b)

Appears in 1 contract

Samples: Asset Purchase Agreement (Bankrate Inc)

Non-Competition; Non-Solicitation. (a) For a period from of five (5) years following the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "Restricted Period")Date, ST and the Sellers shall not, and shall cause their respective Subsidiaries and controlled Affiliates not to, directly or indirectlyengage in any business in the United States and Canada providing printing, mailing, postage and mailing operations management and physical fulfillment services of the type conducted by the Business as of the date hereof generating more than five percent (5%) of the annual gross revenues of Sellers and their Subsidiaries (taken as a whole) (such operations, the "Prohibited Activities"). Additionally, during such five (5) year period following the Closing Date, Sellers shall not (i) own, manage, operate, control or participate in solicit any then-current customers of the ownership, management, operation or control Business with regard to any of any business, whether in corporate, proprietorship or partnership form or otherwisethe Prohibited Activities, or (ii) provide consultative or advice offer to provide, alone or in combination with other services, any services constituting any of the Prohibited Activities to any individual or entity, in either case that is (x) engaged in production, sale or distribution prospective customer of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in this Section 7.10(a) shall not restrict the acquisition of a passive investment by ST and the Sellers, directly or indirectly, in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For Notwithstanding the Restricted Periodforegoing, the parties agree that nothing herein shall prohibit Sellers and ST shall not and shall cause or their Affiliates not torespective Subsidiaries from: (i) causeacquiring or investing in any Person, solicitor the assets thereof, induce or encourage any Employees if less than ten percent (10%) of the Buyer gross revenue, net revenue or DR Partnership assets of such Person (based on such Person's latest annual audited consolidated financial statements) are related to leave such employment or hire, employ or otherwise engage were derived from any such individualof the Prohibited Activities; or (ii) causeacquiring or investing in any Person, induce or encourage any material actual the assets thereof, if ten percent (10%) or prospective client, customer, supplier or licensor more than ten percent (10%) of the Business gross revenue, net revenue or assets of such Person (including any existing based on such Person's latest annual audited consolidated financial statements) are related to or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of were derived from any of the terms Prohibited Activities; provided, that, within one year of this Section 7.10 will cause irreparable injury such acquisition, Sellers or their respective Subsidiaries enter into a definitive agreement to divest themselves of all or substantially all of the Buyer assets or DR Partnership, operations so acquired that are engaged in any of the amount Prohibited Activities (and use commercially reasonable efforts to consummate such transaction as soon as reasonably practicable thereafter); (iii) acquiring or investing in securities representing not more than five percent (5%) of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event outstanding voting power of any breach of this Section 7.10 without the necessity of proving actual damages or posting Person engaged in any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damages. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.Prohibited Activities; or

Appears in 1 contract

Samples: Purchase Agreement (Broadridge Financial Solutions, Inc.)

Non-Competition; Non-Solicitation. (a) For a period of four (4) years from the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "Restricted “Non-Competition Period"), ST Sellers’ Guarantor and each Selling Party agrees that, without the Sellers prior written consent of Buyer, it will not, and will cause its Affiliates not to, directly or indirectly (whether by himself, herself or itself, through an Affiliate in partnership or conjunction with or as a manager, member, owner, consultant or agent of, any other Person or otherwise), engage in any business in Full and Open Competition with the business of the Acquired Companies as conducted on the Closing Date, including by providing services in the areas of research and development, systems engineering, missions operations, technology development, network solutions, scientific and IT service solutions and management consulting primarily for the DOD, intelligence community, NASA and other US Government customers which are substantially the same or similar to those conducted by the Acquired Companies on the Closing Date and including the business prospects, Government Contracts and Government Bids identified in the Acquired Companies’ “waterfall charts” attached hereto as Schedule 7.07 (regardless of whether such prospect ultimately is conducted as a Full and Open Competition or as set-aside for small or disadvantaged business), in each case (a “Competing Business”); provided, however, that nothing in this Section 7.07(a) shall be deemed to limit in any way or preclude such Selling Party or Sellers’ Guarantor, as applicable (i) from owning securities of any entity engaged in any Competing Business which has outstanding publicly traded securities, so long as Selling Party and Sellers’ Guarantor’s aggregate direct holdings in any such entity shall not in the aggregate constitute more than five percent (5.0%) of the voting power of such entity or (ii) from investing in a private equity or hedge fund which invests in or maintains a Competing Business so long as (A) the Selling Parties’ and Sellers’ Guarantor’s holdings in such fund or portfolio company of such fund is passive and (B) neither the Selling Parties nor Sellers’ Guarantor provides advice, manages, works for, consults with or renders other services to such fund or portfolio company nor is otherwise involved in any way in the management or decision-making of such fund or portfolio company. Notwithstanding the foregoing, Sellers’ Guarantor shall not be restricted from owning twenty percent (20%) or less of the membership interests of Aerodyne Industries, LLC (“Aerodyne”) or serving on the board of directors, or any advisory board of Aerodyne; provided, however, that none of the Selling Parties or Sellers’ Guarantor will have involvement in the management of Aerodyne that would otherwise be in violation of this Section 7.07(a); provided, further, if, during the Non-Competition Period Aerodyne engages in a Competing Business as a prime contractor, then Sellers’ Guarantor shall unless otherwise specifically agreed in writing by Buyer, recuse himself from participating in any way with the efforts of Aerodyne in its pursuit of such Competing Business as a prime contractor. If during the Non-Competition Period Aerodyne shall no longer qualify as a small business under any applicable North American Industry Classification System (NAICS) categories that it currently operates under for which it currently qualifies as a small business, and Aerodyne engages in a Competing Business, Sellers’ Guarantor shall divest his ownership interest in Aerodyne and resign from any board of directors or advisory board or other management position of Aerodyne on which he is serving as soon as practical following the date that Aerodyne no longer qualifies as a small business; provided, that, if Aerodyne files a timely appeal of a government size determination, then Sellers’ Guarantor’s obligations referenced above shall commence upon the denial, dismissal, or withdrawal of any such appeal. In any event, Sellers’ Guarantor shall consummate such divestiture and resignation within three (3) months following the date of a government size determination unless such determination is reversed by the applicable appellate authority. (a) Buyer and Sellers’ Guarantor will enter into a mutually agreeable strategic alliance agreement with X Energy LLC, Intuitive Machines LLC, and Axiom Space LLC (“Restricted Affiliate Companies”), to preserve the intent of the restrictions against Competing Business described in Section 7.07(a) but not otherwise restrict or impede the business or growth prospects of the Restricted Affiliate Companies products and services. For the avoidance of doubt, it shall not be a condition to Closing that such agreement be entered into on or prior to Closing. (b) During the Non-Competition Period, Sellers’ Guarantor and each Selling Party shall not, and shall cause their its Affiliates not to, without the prior written consent of Buyer, directly or indirectlyindirectly (whether by himself, herself or itself, through an Affiliate in partnership or conjunction with or as a manager, member, owner, consultant or agent of, any other Person or otherwise), solicit or hire or employ or seek to entice away from Buyer or its Affiliates for employment any Continuing Employee; provided that (i) ownnone of the Selling Parties, manageSellers’ Guarantor or their respective Affiliates will be deemed to have solicited (and any such Persons may hire) any such Continuing Employee who responds to any general media advertisement or job posting placed by or on behalf of such Selling Party or Sellers’ Guarantor or any of its Affiliates, operateas applicable, control prior to any direct or participate in the ownership, management, operation indirect solicitation by such Selling Party or control Sellers’ Guarantor or any of any business, whether in corporate, proprietorship or partnership form or otherwise, or its Affiliates; (ii) provide consultative the Selling Parties, Sellers’ Guarantor or advice services to any individual of their respective Affiliates may solicit and hire any such Continuing Employee who has been involuntarily terminated or entity, laid off in either case that is for other than performance-related reasons (xas determined in the reasonable discretion of Buyer) engaged in productionby Buyer or its Subsidiaries; (iii) the Selling Parties, sale Sellers’ Guarantor or distribution any of telecommunication services their respective Affiliates may solicit and hire any such Continuing Employee whose employment terminated with Buyer and its Subsidiaries for any reason at least two (a "Telecommunications Company"), or (y2) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited years prior to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in this Section 7.10(a) shall not restrict the acquisition of a passive investment by ST and the Sellers, directly or indirectly, in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% date of such entity's consolidated income solicitation or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Businesshiring; and further provided (iv) the confidentiality provisions Selling Parties, Sellers’ Guarantor or any of this Agreement their respective Affiliates may, as agreed by Buyer, solicit and hire certain Continuing Employees, who shall be complied with. (b) For identified and mutually agreed upon by Buyer and Sellers’ Guarantor prior to the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The In the event that any of the covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will 7.07 shall be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from determined by any court of competent jurisdiction to be unenforceable by reason of its extending for too long a period of time or over too large a geographical area or by reason of being too extensive in any other respect, the event of any breach of covenants contained in this Section 7.10 without 7.07 shall be interpreted to extend only over the necessity longest period of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition time for which they may be enforceable, and/or over the largest geographical area as to any other rights and remedies which the Buyer or DR Partnership they may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties be enforceable and/or to the foregoing covenant shall not maximum extent in all other aspects as to which they may be considered a measure of or limit on such damages. (d) The parties hereto agree thatenforceable, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is all as determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable partyin such action.

Appears in 1 contract

Samples: Equity Purchase Agreement (Kbr, Inc.)

Non-Competition; Non-Solicitation. (a) For Except as permitted by this Section 5.9, for a period from of four (4) years commencing on the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "Restricted Period"), ST and the Sellers Seller shall not, and shall cause their not permit any of its Affiliates not to, directly or indirectly, (i) own, manage, operate, control engage in or participate assist others in engaging in the ownershipRestricted 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, managementincluding as a partner, operation shareholder, member, employee, principal, agent, trustee or control 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 businessmember of the Company Group. Notwithstanding the foregoing, whether nothing in corporatethis Agreement shall preclude, proprietorship prohibit or partnership form restrict Seller or otherwiseits Affiliates from any of the following: (i) owning, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Seller is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own 1% or more of any class of securities of such Person; (ii) engaging in any manner in any business activity that would otherwise violate this Section 5.9 to the extent such business activity is conducted on the date hereof through one of Seller’s Affiliates that is not a member of the Company Group (each, an “Existing Business”) and the gross revenue from the competing portion of such Existing Business does not exceed the lesser of 15% of the aggregate revenue of such Existing Business or $20,000,000.00 for the fiscal year immediately preceding the measurement date; (iii) engaging in any manner in any business activity that would otherwise violate this Section 5.9 that is acquired from any Person (an “After-Acquired Business”) or is carried on by any Person that is acquired by Seller or any of its Affiliates in each case after the Closing (an “After-Acquired Company”) provided that, with respect to this clause (3), the gross revenue from the competing portion of such After-Acquired Business or After-Acquired Company does not exceed the lesser of 15% of the aggregate revenue of any such After-Acquired Business or After-Acquired Company or $20,000,000.00 for the fiscal year immediately preceding the measurement date; or (iv) providing consulting services of the type provided by CBIZ KA Consulting Services, LLC, as described in reasonable detail in Section 5.9 of the Disclosure Schedule, on the date of this Agreement to the healthcare industry. (b) During the Restricted Period, Seller shall not, and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any employee of a member of the Company Group or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 5.9(b) shall prevent Seller or any of its Affiliates from hiring (i) any employee whose employment has been terminated by a member of the Company Group or (ii) provide consultative or advice services after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee. (c) Except with respect to any individual or entity, in either case that is activity permitted pursuant clauses (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"1), (2), (3) or (y4) that otherwise competes with the Businessof Section 5.9(a), in each case, including any business actually conducted or about to be conducted during the Restricted Period Period, Seller shall not, and shall not permit any of its Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of any member of the Company Group or potential clients or customers of any member of the Company Group for purposes of diverting their business or services from a member of the Company Group. (d) Seller acknowledges that a "Restricted Business")breach or threatened breach of this Section 5.9 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Seller of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including but not limited 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 the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, post bond). (e) Seller acknowledges that the restrictions contained in this Section 7.10(a) shall not restrict 5.9 are reasonable and necessary to protect the acquisition legitimate interests of Buyer and constitute a passive investment by ST and the Sellers, directly or indirectly, in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) material inducement to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of Buyer to enter into this Agreement shall be complied with. (b) For and consummate the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided transactions contemplated by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equityAgreement. In the event that the Buyer or DR Partnership were to seek damages for any breach of covenant contained in this Section 7.105.9 should ever be adjudicated to exceed the time, the portion of the Purchase Price which geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is allocated by the parties expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the foregoing maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.9 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not be considered a measure of invalidate or limit on render unenforceable the remaining covenants or provisions hereof, and any such damagesinvalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction. (df) The parties hereto agree thatthat it is their intent that each Member of the Company Group is and shall be a third party beneficiary of the terms, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time periodconditions, a specified geographical area, a specified business limitation or any other relevant feature provisions and restrictions of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party5.9.

Appears in 1 contract

Samples: Stock Purchase Agreement (CBIZ, Inc.)

Non-Competition; Non-Solicitation. Executive and the Company agree to the non-competition and non-solicitation provisions of this Article VIII (i) as part of the consideration for the compensation and benefits to be paid to Executive hereunder, (ii) to protect the trade secrets and confidential information of the Company or its affiliates disclosed or entrusted to Executive by the Company or its affiliates or created or developed by Executive for the Company or its affiliates, the business goodwill of the Company or its affiliates developed through the efforts of Executive and/or the business opportunities disclosed or entrusted to Executive by the Company or its affiliates and (iii) as an additional incentive for the Company to enter into this Agreement. (a) For a period Subject to the exceptions set forth in section 8.2(b) below, Executive expressly covenants and agrees that during the Prohibited Period (i) he will refrain from carrying on or engaging in, directly or indirectly, any Competing Business in the date hereof until the later of the fifth anniversary of the Initial Closing Date Restricted Area and (the "Restricted Period"), ST and the Sellers shall ii) he will not, and shall he will cause their Affiliates his affiliates not to, directly or indirectly, (i) own, manage, operate, join, become an employee of, control or participate in the ownershipor be connected with or loan money to, management, operation sell or control of lease equipment to or sell or lease real property to any business, whether individual, partnership, firm, corporation or other entity which engages in corporate, proprietorship or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, a Competing Business in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around businessArea; provided, however, for purposes of this Section 8.2(a) only, in the event Executive terminates his employment pursuant to Section 3.3. for any reason other than Good Reason, Executive’s Prohibited Period will end on the Executive’s Date of Termination; provided, further, however, that Executive shall be subject to the covenants set forth in this Section 8.2(a) in such case during the Prohibited Period, for so long as, but only so long as, during each month of the Prohibited Period the Company pays the Executive 1/24 of the amount (prorated for partial months) he would have received pursuant to Section 7.2(c) if Executive was entitled to a payment pursuant to Section 7.2(c) (it being acknowledged that the Executive’s responsibility to comply with the covenants of this Section 8.2(a) shall end as of the month the Company fails to make the payment contemplated by this proviso and that the Company has the right to stop such payments whenever it so chooses). (b) Notwithstanding the restrictions contained in this Section 7.10(a) shall 8.2(a), Executive or any of his affiliates may own an aggregate of not restrict more than 2.5% of the acquisition outstanding stock of any class of any corporation engaged in a Competing Business, if such stock is listed on a national securities exchange or regularly traded in the over-the-counter market by a member of a passive investment by ST and national securities exchange, without violating the Sellersprovisions of Section 8.2(a), provided that neither Executive nor any of his affiliates has the power, directly or indirectly, to control or direct the management or affairs of any such corporation and is not involved in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% management of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipcorporation. (c) The Executive further expressly covenants and undertakings contained in this Section 7.10 relate agrees that during the Prohibited Period, he will not, and he will cause his affiliates not to matters (i) engage or employ, or solicit or contact with a view to the engagement or employment of, any person who is an officer or employee of the Company or any of their respective affiliates or (ii) canvass, solicit, approach or entice away or cause to be canvassed, solicited, approached or enticed away from the Company or any of their respective subsidiaries any person who or which are of is a special, unique and extraordinary character and a violation customer of any of such entities during the terms period during which Executive is employed by the Company. Notwithstanding the foregoing, the restrictions of clause (i) of this Section 7.10 will cause irreparable injury 8.2(c) shall not apply with respect to (A) an officer or employee whose employment has been involuntarily terminated by his or her employer (other than for cause), (B) an officer or employee who has voluntarily terminated employment with the Buyer Company and their respective affiliates and who has not been employed by any of such entities for at least one year, (C) an employee who is paid on an hourly basis, or DR Partnership, the amount of which will be impossible (D) an officer or employee who responds to estimate or determine a general solicitation that is not specifically directed at officers and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion employees of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure Company or any of or limit on such damagestheir respective affiliates. (d) The parties hereto agree thatExecutive may seek the written consent of the Company, if which may be withheld for any court of competent jurisdiction in a final nonappealable judgment determines that a specified time periodor no reason, a specified geographical area, a specified business limitation or any other relevant feature to waive the provisions of this Article VIII on a case by case basis. (e) The restrictions contained in Section 7.10 is unreasonable, arbitrary 8.2 shall not apply to any product or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against services that the applicable partyCompany provided during the Executive’s employment but that the Company no longer provides at the Date of Termination.

Appears in 1 contract

Samples: Employment Agreement (Forum Oilfield Technologies Inc)

Non-Competition; Non-Solicitation. (a) For Beginning on the Closing Date and continuing for a period from the date hereof until the later of the fifth anniversary of the Initial Closing Date three (3) years (the "Restricted Period"), ST each Key Shareholder covenants and the Sellers shall agrees that he will not, and shall cause their Affiliates not to, directly or indirectly, independently or in concert with others, for himself, or on behalf of any Person, other than Buyer, the Company, or any Affiliate of Buyer (collectively, the “Buyer Parties”): (i) own, manage, operate, control control, participate in, render services for, become employed by, or participate invest in, directly or indirectly, within the Territory, the business of designing, manufacturing or selling high-power semiconductor burn-in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwisetest systems, or (ii) provide consultative or advice services to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company")profit from, or lend or permit the use of its name in connection with, any such business within the Territory. “High-power semiconductor test systems” are systems that utilize more than 150 xxxxx of power for burn-in and otherwise have burn-in test capabilities that are the same as or similar to the Company’s Sonoma test system. (yb) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during During the Restricted Period (a "Restricted Business")Period, including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale each Seller covenants and dial-around business; provided, however, agrees that the restrictions contained in this Section 7.10(a) shall not restrict the acquisition of a passive investment by ST and the Sellershe will not, directly or indirectly, independently or in the aggregate of less than 5% of the outstanding capital stock concert with others, for himself, or on behalf of any companyPerson, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) causeencourage, induce, solicit, advise or attempt to encourage, induce or encourage solicit or advise, any Employees employee of any Buyer Party for the Buyer or DR Partnership purpose of causing such employee to leave their employment with such employment or hireBuyer Party, employ or otherwise engage any such individual; or (ii) causehire or otherwise retain (as an employee, induce agent, or encourage contractor, or otherwise) or solicit for hiring or retention any material actual or prospective clientemployee of any Buyer Party. For purposes of this Section 6.4(b), customer, supplier or licensor an employee of the Business (including any existing or former customer of the Sellers or the Subsidiaries and Buyer Party means any Person that becomes who was an employee of such Buyer Party at any time during the six (6) month period immediately prior to the Closing Date or who such Seller knows or reasonably should know is employed by a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipBuyer Party. (c) The covenants Each Seller acknowledges and undertakings represents that: (i) sufficient consideration has been given by each party to this Agreement to the other as it relates hereto; (ii) such Seller has consulted with independent legal counsel regarding its rights and obligations under this Section 6.4; (iii) such Seller fully understands the terms and conditions contained herein; (iv) the restrictions and agreements in this Section 7.10 relate to matters which 6.4 are of a special, unique reasonable in all respects and extraordinary character and a violation of any necessary for the protection of the terms Company and its Confidential Information and goodwill and without such protection, the customer and client relationships and competitive advantage of the Company would be materially adversely affected; (v) the agreements in this Section 7.10 will cause irreparable injury 6.4 are an essential inducement to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine enter into this Agreement and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 they are cumulative and in addition to, rather than in lieu of, any similar or related covenants to which Seller is party or by which it is bound; and (vi) except as set forth on Schedule 6.4(c), such Seller is not a party to or bound by any employment agreement, non-compete agreement or confidentiality agreement with any Person other rights and remedies which than the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damagesCompany. (d) If at any time a court or arbitrator’s award holds that the restrictions in this Section 6.4 are unreasonable under circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area. The parties hereto agree thatthat any breach of the provisions contained in this Section 6.4 will result in serious and irreparable injury and therefore money damages would not be an adequate remedy for any such breach. Therefore, if in the event of a breach or threatened breach of any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature provisions of this Section 7.10 6.4 that is unreasonablecontinuing, arbitrary the Company and its successors and assigns, in addition to other rights and remedies existing in their favor, shall be entitled to specific performance or against public policy, then a lesser time period, geographical area, business limitation injunctive or other relevant feature which relief in order to enforce, or prevent any violations of, the provisions hereof. In addition, in the event of a breach or violation by Seller of this Section 6.4, the Restricted Period shall be tolled until such breach or violation has been duly cured. (e) From and after the Closing Date, such Seller will not, and will cause its Affiliates not to, alone or in connection with any Person, engage in any conduct or make any statement, whether in commercial or noncommercial speech, that disparages, criticizes or is determined by such court injurious to the reputation of Buyer or any of its Affiliates (including the Company), including (i) inducing or encouraging others to disparage Buyer, any of its Affiliates, and (ii) making or causing to be reasonablemade any statement that maligns the business, not arbitrary and not against public policy may be enforced against the applicable partygoodwill, personal or professional reputation of Buyer, its Affiliates.

Appears in 1 contract

Samples: Stock Purchase Agreement (Aehr Test Systems)

Non-Competition; Non-Solicitation. (ai) For a period from Executive and the date hereof until Company agree to the later non-competition and non-solicitation provisions of this Section 9(b); (i) in consideration for the Proprietary Information provided by the Company to Executive pursuant to Section 8 of this Agreement; (ii) as part of the fifth anniversary consideration for the compensation and benefits to be paid to Executive hereunder; (iii) to protect the Proprietary Information of the Initial Closing Date Company or its Affiliates disclosed or entrusted to Executive by the Company or its Affiliates or created or developed by Executive for the Company or its Affiliates, the business goodwill of the Company or its Affiliates developed through the efforts of Executive and/or the business opportunities disclosed or entrusted to Executive by the Company or its Affiliates; and (iv) as an additional incentive for the "Company to enter into this Agreement. (ii) Subject to the exceptions set forth in Section 9(b)(iii) below, Executive expressly covenants and agrees that during the Prohibited Period (i) Executive will refrain from carrying on or engaging in, directly or indirectly, any Competing Business in the Restricted Period"), ST Area and the Sellers shall (ii) Executive will not, and shall Executive will cause their Affiliates Executive’s affiliates not to, directly or indirectly, (i) own, manage, operate, join, become an employee, partner, owner or member of (or an independent contractor 11 to), control or participate in the ownershipor loan money to, management, operation sell or control of lease equipment to or sell or lease real property to any business, whether individual, partnership, firm, corporation or other entity which engages in corporate, proprietorship or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, a Competing Business in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period Area. (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that iii) Notwithstanding the restrictions contained in this Section 7.10(a) shall 9(b)(ii), Executive or any of Executive’s affiliates may own an aggregate of not restrict more than 1% of the acquisition outstanding stock of any class of any corporation engaged in a Competing Business, if such stock is listed on a national securities exchange or regularly traded in the over-the-counter market by a member of a passive investment by ST and national securities exchange, without violating the Sellersprovisions of Section 9(b)(ii), provided that neither Executive nor any of Executive’s affiliates has the power, directly or indirectly, to control or direct the management or affairs of any such corporation and is not involved in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% management of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied withcorporation. (biv) For Executive further expressly covenants and agrees that during the Restricted Prohibited Period, the Sellers Executive will not, and ST shall Executive will cause Executive’s affiliates not and shall cause their Affiliates not to: to (i) causeengage or employ, solicitor solicit or contact with a view to the engagement or employment of, induce any person who is an officer or encourage any Employees employee of the Buyer Company or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; of its Affiliates or (ii) causecanvass, induce solicit, approach or encourage entice away or cause to be canvassed, solicited, approached or enticed away from the Company or any material actual of its Affiliates any person who or prospective client, customer, supplier or licensor of the Business (including any existing or former which is a customer of any of such entities during the Sellers or period during which Executive is employed by the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipCompany. (cv) The Executive expressly recognizes that Executive is a high-level, executive employee who will be provided with access to Proprietary Information and trade secrets as part of Executive’s employment and that the restrictive covenants and undertakings contained set forth in this Section 7.10 relate 9 are reasonable and necessary in light of Executive’s executive position and access to matters which are of a specialthe Proprietary Information. (vi) Notwithstanding anything herein to the contrary, unique and extraordinary character and a violation of any of the terms provisions of this Section 7.10 will cause irreparable injury 9(b) shall not restrict Executive’s ability to provide professional services as an attorney, provided that (i) such services do not violate Executive’s ethical and legal duties to maintain confidential communications and client confidences of the Company and its Affiliates and (ii) Executive does not provide legal services to any person or entity on a matter that is substantially related to his provision of legal services to the Buyer Company or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damagesits Affiliates. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Employment Agreement (Patterson Uti Energy Inc)

Non-Competition; Non-Solicitation. (a) For a period from the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "Restricted Period"), ST and the Sellers shall Seller will not, and shall cause its Affiliates (collectively, for purposes of this Section 7.7(a), the “Restricted Entities”) not to, directly or indirectly, for a period of four (4) years following the Closing Date within the State of California and for a period of two (2) years following the Closing Date in any other states in which any of the holders of Deposits or CDARS CDs or their respective property managers or association managers are located as of the Closing Date, (i) engage in the Transferred Activities; (ii) offer, directly or indirectly, a package of services substantially similar to the Transferred Activities targeted specifically at or to community associations, condominium associations, home owners associations or the managers of such associations; or (iii) use any confidential information obtained through Seller's acquisition or ownership of the Transferred Activities to (A) provide deposit, lock box or cash management services, or (B) terminate or reduce their Transferred Activities relationships with Purchaser; provided, however, that the Restricted Entities may do each of the following without any Restricted Entity being deemed to be in violation of this Section 7.7(a): (1) own or hold up to 10% of the outstanding securities of any entity whose securities are listed and traded on a nationally recognized securities exchange or market that is engaged in the Transferred Activities (provided that the Restricted Entities otherwise do not control the business or affairs of such entity) or hold or exercise rights of ownership with respect to any security in a fiduciary capacity or otherwise for the benefit of a third party not affiliated with any Restricted Entity (2) continue to engage in any Transferred Activities previously conducted by a Person with whom a Restricted Entity becomes affiliated as a result of any merger, consolidation, amalgamation business combination, stock sale or purchase, sale or purchase of assets or businesses or like strategic transaction; provided that, in the case of an acquisition of an entity or an equity interest therein, or of assets or a business, by a Restricted Entity, the primary purpose of the transaction is other than providing a means for a Restricted Entity to re-enter the Transferred Activities; or (3) continue to provide banking services, including deposit, lock box, lending and cash management services, to the customers identified on Section 7.7(a) of the Seller Disclosure Schedule. (b) For a period of four (4) years following the Closing Date, Seller will not, and shall cause its Affiliates not to, solicit for employment any Accepting Employee; provided, however, that nothing in this Section 7.7(b) shall be deemed to prohibit Seller or its Affiliates from making solicitations not specifically targeted at Accepting Employees (including job announcements in newspapers and industry publications or on the Internet). (c) For a period of four (4) years following the Closing Date, Seller and its Affiliates shall not, directly or indirectly, (i) ownuse any information regarding the Transferred Activities in their possession, manageincluding as part of the books and records that are retained by Seller, operateto solicit or engage in other efforts directed to or targeted at any customer or customers of the Transferred Activities with respect to the accepting deposits, control liquidity or participate in the ownership, management, operation cash management or control of any business, whether in corporate, proprietorship lending products or partnership form or otherwise, services or (ii) provide consultative or advice services use such information to take any individual or entity, in either case other actions that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including are designed to induce any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in this Section 7.10(a) shall not restrict the acquisition of a passive investment by ST and the Sellers, directly or indirectly, in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and Transferred Activities to transfer any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damages. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.customer's

Appears in 1 contract

Samples: Purchase and Assumption Agreement (First Banks, Inc)

Non-Competition; Non-Solicitation. As a condition precedent to Purchaser's --------------------------------- obligation to enter into and perform its obligations under this Agreement, Seller, on behalf of itself and its affiliates, agrees that: (a) For a period from of five (5) years after the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "Restricted Non- --- Competition Period"), ST except for ownership of the Note and the Sellers shall notexcept with respect ------------------ to technology developed by Seller or any of its affiliates in conjunction with other lines of business, and shall cause their Affiliates not toneither Seller nor its affiliates shall, directly or indirectly, (i) owneither for itself or for any other person, manage, operate, control or participate "participate" anywhere in the ownershipworld in the Contact Lens Products Business or any extension thereof. For purposes of this Agreement, managementthe term "participate" includes any direct or indirect interest in any enterprise, operation whether as an officer, director, employee, partner, sole proprietor, agent, representative, independent contractor, consultant, franchisor, franchisee, creditor, owner or control otherwise; provided, that the term "participate" shall not include ownership of less than 2% of the stock of a publicly-held corporation whose stock is traded on a national securities exchange or in the over-the-counter market. Notwithstanding the above, nothing herein shall prohibit, prevent, or restrict any of Seller or its affiliates from acquiring any company or business the acquisition of which would (but for the provisions of this sentence) be prohibited under the provisions of this Section ------- 6.11 (a) (prohibited activities of any business, whether in corporate, proprietorship such acquired company or partnership form or otherwise, or (ii) provide consultative or advice services business being ------- referred to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a as the "Telecommunications Companycontact lens business activities"), where the turnover of such contact lens business activities constitutes less than fifty percent (50%) of the aggregate turnover of the company, business, or group of companies or businesses acquired (yas the case may be) as part of the same transaction or series of related transactions. In the event that otherwise competes with the Business, in each case, including Seller or any of its affiliates should acquire any such company or business actually conducted or about to be conducted during the Restricted Non- Competition Period (a "Restricted Business"), including but not limited pursuant to the prepaid wireless immediately preceding sentence, Seller agrees to dispose or cause such affiliate to dispose of the contact lens business activities of such company or prepaid calling card, carrier wholesale business within twelve (12) months from the date of consummation of such transaction and dial-around business; provided, however, that the restrictions contained to provide Purchaser with a right of first offer to purchase such contact lens business activities. Seller will notify Purchaser in this Section 7.10(a) shall not restrict writing of the acquisition of a passive investment by ST any such contact lens business activities (the "Purchase Notice") within thirty (30) days after the date of such acquisition, and if Purchaser gives written notice of its interest in acquiring such contact lens business activities (the Sellers, directly or indirectly, in the aggregate of less than 5% "Interest Notice") within thirty (30) days of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership receipt of the securities of Restricted Businesses set forth Purchase Notice, Seller agrees to negotiate in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed good faith with Purchaser for the purchase by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% Purchaser of such entitybusiness. If, after sixty (60) days from the date of Seller's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed byreceipt of the Interest Notice, Seller and Purchaser have been unable to agree on terms for the purchase by Purchaser of the contact lens business activities, or if, prior to such date, Purchaser shall have advised Seller that Purchaser has determined not to further pursue the acquisition of such business, then Seller may sell such contact lens business activities to any other person or entity on terms not less favorable to Seller or its affiliates than those offered in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied withwriting by Purchaser during negotiations contemplated herein. (b) For During the Restricted Non-Competition Period, Seller will not, and will not permit its affiliates to, divulge or appropriate for their own use, or for the Sellers and ST use of any third party, any secret or confidential information or knowledge obtained by Seller or any of its affiliates concerning the Contact Lens Products Business. This obligation of secrecy shall not and shall cause their Affiliates not to: apply to information which (i) cause, solicit, induce is or encourage any Employees becomes part of the Buyer public domain other than through breach of this Agreement or DR Partnership to leave such employment through the fault of Seller or hireany of its affiliates, employ or otherwise engage any such individual; or (ii) causeis or becomes available to Seller or its affiliates from an unaffiliated source, induce which source has no obligation of secrecy to Purchaser or encourage its affiliates, (iii) is required to be disclosed by law or government order (but only to the extent so required), or (iv) is used by Seller or any material actual of its affiliates in any other lines of business, provided that the exception in this subclause (iv) shall not apply to information that is divulged by Seller or prospective client, customer, supplier or licensor of its affiliates to any third party specifically for its use in the Business Field (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closingas defined in Section 6.11(f) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship--------------- below). (c) The covenants and undertakings contained During the two-year period following the Closing Date, neither Seller nor its affiliates will solicit the employment (in any capacity of, or, to the extent not otherwise prohibited by law, hire any Employee without the prior written consent of Purchaser. (d) If, at the time of enforcement of this Section 7.10 relate to matters which 6.11, a court holds ------------ that the duration, scope, geographic area or other restrictions stated herein are unreasonable under circumstances then existing, the parties agree that the maximum duration, scope, geographic area or other restrictions deemed reasonable under such circumstances by such court shall be substituted for the stated duration, scope, geographic area or other restrictions. (e) Seller, on behalf of a specialitself and its affiliates, unique recognizes and extraordinary character and a violation affirms that in the event of breach of any of the terms provisions of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership------- 6.11, the amount of which will money damages would be impossible to estimate or determine inadequate and which cannot be adequately compensatedPurchaser and its affiliates would ---- have no adequate remedy at law. Accordingly, Seller, on behalf of itself and its affiliates, agrees that Purchaser and its affiliates shall have the remedy at law for any breach of this Section 7.10 will be inadequate. Thereforeright, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which existing in their favor, to enforce their rights and Seller's obligations under this Section 6.11 not only by an ------------ action or actions for damages, but also by an action or actions for specific performance, injunctive and/or other equitable relief in order to enforce or prevent any violations (whether anticipatory, continuing or future) of the Buyer or DR Partnership may have hereunder or at law or in equityprovisions of this Section 6.11 (including, without limitation, the extension of ------------ the Non-Competition Period by a period equal to (i) the length of the violation of this Section 6.11 plus (ii) the length of any court ------------ proceedings necessary to stop such violation). In the event that of a breach or violation by Seller of any of the Buyer or DR Partnership were to seek damages for any breach provisions of this Section 7.106.11, the portion running ------------ of the Purchase Price which is allocated by Non-Competition Period (but not of Seller's obligations under this Section 6.11) shall be tolled with respect to Seller during the parties to the foregoing covenant shall not be considered a measure continuance of ------------ any actual breach or limit on such damagesviolation. (df) The parties hereto agree thatDuring the two-year period following the Closing Date, if Seller will, and will cause its affiliates to, use reasonable best efforts to notify Purchaser in writing of any court proposed licensing of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation IP Rights by Seller or any of its affiliates to any other relevant feature person or entity engaged in the Business Field, for use of the same in the Business Field. In such event, Seller will negotiate in good faith with Purchaser for the non-exclusive licensing of such IP Rights on terms mutually agreeable to Purchaser and Seller. As used in this Section 7.10 is unreasonable------- 6.11(f), arbitrary "IP Rights" means all invention registrations, patents, patent ------- registrations and patent applications and all rights therein provided by law and all technical information, including without limitation (i) inventions, whether or against public policynot patentable, then whether or not reduced to practice, and whether or not yet made the subject of a lesser time periodpending patent application or applications, geographical area(ii) ideas and conceptions of potentially patentable subject matter, business limitation including without limitation, any patent disclosures, whether or other relevant feature which is determined by such court not reduced to be reasonablepractice and whether or not yet made the subject of a patent application, (iii) trade secrets and confidential, technical information (including without limitation, ideas, formulae, compositions, inventions, and conceptions of inventions whether patentable or unpatentable and whether or not arbitrary yet reduced to practice), and not against public policy may be enforced against (iv) technology, manufacturing and production processes and techniques, research and development information, drawings, specifications, designs, plans, proposals, technical data, whether secret or confidential or not. "Business Field" means the applicable partyworldwide research, development, manufacture, distribution and sale of contact lenses.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Wesley Jessen Holding Inc)

Non-Competition; Non-Solicitation. (a) For To accord the Parent the full value of the transactions contemplated hereby, for a period from of three (3) years after the date hereof until the later Closing, none of the fifth anniversary of the Initial Closing Date Mxxxx Xxxxxx, Axxxxxx Xxxxxx, Cxxxxxx Xxxxxx, Jxxxxx Xxxxxx, Cxxxxxx Xxxxxx Trust or Jxxxxx Xxxxxx Trust (the "each, a “Restricted Period"), ST and the Sellers shall notPerson”) shall, and each of them shall cause their Affiliates any entities which they control not to, directly or indirectly, : (i) ownas an individual proprietor, managepartner, operatestockholder, control officer, executive, director, joint venturer, investor or participate in the ownershipany other capacity whatsoever (except in all cases in a capacity solely as a passive investor), managementengage in any business involving (A) Italian motif quick service restaurants, operation Italian quick casual restaurants or control of any business, whether in corporate, proprietorship or partnership form or otherwise, Italian casual restaurants or (ii) provide consultative or advice services to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (yB) that otherwise competes with the Businessbusiness conducted by the Company and the Company Subsidiaries (other than the business conducted by the Withdrawn Assets) as conducted on the Closing Date; provided that (i) the foregoing shall not prohibit or restrict the ability of any Stockholder or Affiliates thereof to act as a Franchisee of the Company or any Company Subsidiary pursuant to a Franchise Agreement, (ii) the foregoing shall not prohibit or restrict the ability of any Restricted Person or Affiliate thereof to engage in the business conducted by the Withdrawn Assets as conducted on the date hereof, and (iii) the foregoing shall not prohibit or restrict the ability of any Restricted Person or Affiliate thereof to own or operate coffee shops, Cosi-type sandwich shops or similar establishments, as long as such establishments do not predominantly serve any of the featured Italian entree menu items (including pizza) that are served at Sbarro restaurants; (ii) induce or attempt to induce to leave the employ of the Company and/or any Company Subsidiary, or solicit, employ, hire or engage, or attempt to employ, hire or engage, any of the individuals listed on Schedule 5.16(a)(ii) of the Company’s Disclosure Schedule; provided that neither (i) generalized searches through media advertisement or employment firms in each casecase that are not directed to such personnel nor (ii) solicitation of such individuals following their termination of employment or notification of termination of employment shall constitute a violation of the foregoing. (b) The Stockholders recognize that, including any by reason of their ownership of the Company and their participation in the operation of the business actually conducted or about to be conducted during of the Restricted Period Company and the Company Subsidiaries, they have acquired confidential information and trade secrets concerning the operation of such business. Accordingly, each Stockholder agrees that it will not for a period of three (a "Restricted Business")3) years after the Closing, including but not limited except in the performance of its obligations to the prepaid wireless business Parent under this Agreement or prepaid calling card, carrier wholesale and dial-around business; provided, however, that with the restrictions contained in this Section 7.10(a) shall not restrict prior written consent of the acquisition of a passive investment by ST and the SellersParent, directly or indirectly, in disclose confidential information relating to the aggregate Company, the Company Subsidiaries or their respective businesses that it may learn or has learned (including as a result of less than 5% having access to the books and records of the outstanding capital stock Company as set forth in Section 5.6 hereof) by reason of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the its ownership of the securities of Restricted Businesses set forth Company and their participation in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit operation of the Restricted Business or business of the entity in connection with such Restricted Business; Company and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted PeriodCompany Subsidiaries, the Sellers and ST shall not and shall cause their Affiliates not to: unless (i) causesuch information is or becomes generally available to the public other than as a result of disclosure by any Stockholder or any of their Affiliates (other than the Company and the Company Subsidiaries), solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) causedisclosure of such information is required by applicable law or (iii) with respect to a Stockholder who remains an employee of Surviving Corporation or its Affiliates following the Closing, induce or encourage any material actual or prospective client, customer, supplier or licensor such information is used in the performance of the Business (including any existing or former customer his duties as an employee of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipSurviving Corporation. (c) The covenants To accord the Parent the full value of the transactions contemplated hereby, following the Closing, and undertakings notwithstanding anything contained herein, none of the Restricted Persons shall, directly or indirectly: (i) use any Sxxxxx Xxxx as the name (or part of the name) of, or otherwise as a Mxxx in connection with, any (A) restaurant services or food services, or (B) food products or any business that produces, distributes or sells any food products, including any frozen foods or sauces (for the avoidance of doubt, food products shall not include cookware, utensils or other non-food items that may relate to food); or (ii) disparage the Company, any Company Subsidiary or any Person known by such Restricted Person to be a Franchisee of the Company or any Company Subsidiary. For the avoidance of doubt, and without in any way limiting any of the provisions contained herein, including any of the Restricted Persons’ obligations set forth above in this Section 5.16(c), nothing contained in this Section 7.10 relate to matters which are 5.16(c) shall limit the rights of a special, unique and extraordinary character and a violation the Company or of any of the terms of this Section 7.10 will cause irreparable injury Restricted Persons to enforce a Mxxx to the Buyer full extent permitted under applicable laws (including the right to assert any claim of infringement or DR Partnership, the amount of which will be impossible to estimate unfair competition or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights claim or action permitted under applicable laws), if and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on extent such damagesPerson has any rights under applicable laws to enforce such Mxxx. (d) For the avoidance of doubt, and without in any way limiting any of the provisions contained herein, including any of the Restricted Persons’ obligations set forth in Section 5.16(c), nothing contained in this Section 5.16(d) shall restrict any of the Restricted Persons from (i) using his or her name to identify himself or herself acting in his or her capacity as an individual, or (ii) using the Sxxxxx Xxxx in a descriptive, historical or other similar non-trademark manner; provided that, for the avoidance of doubt, the foregoing shall be subject to the Restricted Persons’ obligations under Section 5.16(c)(ii). (e) The parties hereto agree that, that if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time periodthe duration, a specified geographical area, a specified business limitation scope or any other relevant feature of this Section 7.10 5.16 is unreasonable, arbitrary or against public policy, then a lesser time periodduration, geographical area, business limitation scope or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Merger Agreement (Sbarro Inc)

Non-Competition; Non-Solicitation. (a) For a period from From and after the date hereof --------------------------------- Closing until the later first to occur of the fifth anniversary of the Initial Closing Date (the "Restricted Period"), ST and the Sellers shall not, and shall cause their Affiliates not to, directly or indirectly, (i) own, manage, operate, control or participate the date that AWI ceases to hold an ownership interest in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, or Company; (ii) provide consultative or advice services to any individual or entity, in either case the date that is (x) engaged in production, sale or distribution the persons and/or entities who are stockholders of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited Company immediately prior to the prepaid wireless business Closing and (A) trusts for the benefit of such persons or prepaid calling cardthe spouse, carrier wholesale issue parents or other relatives of such persons, (B) entities controlling or controlled by such persons and dial-around business; provided, however, that the restrictions contained in this Section 7.10(a(C) shall not restrict the acquisition of a passive investment by ST and the Sellers, directly or indirectly, in the aggregate event of the death of any such individual person, heirs or testamentary legatees of such persons own less than 510% of the outstanding capital stock of the Company and (iii) the tenth anniversary of the date of this Agreement (such period shall be referred to herein as the "Non-Competition --------------- Period"), AWI shall not, and will cause its direct and indirect Subsidiaries not ------ to, (i) engage in the business of manufacturing, distributing, marketing or selling glazed or unglazed ceramic tile in North America; provided however, that nothing contained herein ---------------- shall limit the right of AWI or its Subsidiaries to engage in the manufacture, sale, distribution or marketing of products used in the installation of ceramic tile, or (ii) directly or indirectly solicit, encourage, entice or induce any companyperson who is an employee of the Company, whether publicly traded any Company Subsidiary or privately heldAO, in each case, where such employee is engaged in a Restricted Business or, the ownership employ of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided furtherCompany, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income Subsidiary or consolidated assets) AO in a Restricted Business business related to the business engaged in by AO as of the date hereof, to terminate his or her employ with the Company, any Company Subsidiary or AO, as applicable, but only for so long as ST such person is not employed by, or in any way involved with by the Restricted Business and does not provide, whether directly or indirectlyCompany, any service (whether as consultant, advisor Company Subsidiary or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied withAO. (b) For a period of 18 months following the Restricted PeriodClosing Date, AWI will not, and will cause its Subsidiaries not to, without the Sellers and ST prior written consent of the Company, employ any person who is an employee of the Company, any Company Subsidiary or AO on the Closing Date. The restrictions set forth in this Section 5.4(b) shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage apply to any Employees of the Buyer or DR Partnership to leave such persons whose employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the BusinessCompany, to terminate any Company Subsidiary or modify any AO, as the case may be, has been terminated by the Company, such actual Company Subsidiary or prospective relationshipAO during such 18 month period. (c) The covenants parties acknowledge and undertakings contained in agree that if a breach occurs under this Section 7.10 relate 5.4, any remedy of law would be inadequate and that the affected party, in addition to matters which are of seeking monetary damages in connection with any such breach, shall be entitled to specific performance, injunctive or other equitable relief to prevent or restrain a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, 5.4 or to enforce the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach provisions of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damages5.4. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Stock Purchase Agreement (Armstrong World Industries Inc)

Non-Competition; Non-Solicitation. (a) For Seller agrees that during the period beginning on the Closing Date and ending on the third anniversary of the Closing Date it will not, and it will not permit any of its Subsidiaries to: (i) control (within the meaning of the BHC Act, including the rules and regulations promulgated thereunder, or any successor provision) any insured depositary institution with its headquarters located within Puerto Rico, (ii) open or operate a period from branch of Seller, or of any Subsidiary of Seller, in Puerto Rico that engages in banking, insurance or broker-dealer activities or (iii) actively market banking, securities brokerage or insurance products and services to Persons in Puerto Rico (other than (A) as a result of worldwide or region wide general media advertising not aimed primarily at Persons in Puerto Rico, (B) to any Person or any of its Affiliates to whom Seller or any of its Affiliates has provided products or services prior to the date hereof until and (C) to any Person or any of its Affiliates to whom Seller or any of its Affiliates first provides products or services after the later of date hereof so long as the fifth anniversary of marketing in connection with the Initial Closing Date first products and services provided was not primarily directed to providing products and services in Puerto Rico) (the "Restricted Period"activities referenced in clauses (i), ST and the Sellers shall not, and shall cause their Affiliates not to, directly or indirectly, (i) own, manage, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, in either case that is and (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"iii), the “Prohibited Activities”); provided that nothing herein will prevent Seller or any of its Subsidiaries from acquiring, and thereafter owning, any entity or business (ysuch entity or business, the “Acquired Business”) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in this Section 7.10(a) shall not restrict the acquisition of a passive investment by ST and the Sellers, directly or indirectlyindirectly engages in any of the Prohibited Activities so long as, in at the aggregate time of the acquisition, the Prohibited Activities account for less than 520% of the outstanding capital stock value (as determined in good faith by the board of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership directors of Seller) of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Acquired Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For Seller agrees that during the Restricted Periodperiod beginning on the Closing Date and ending on the first anniversary of the Closing Date it will not, and it will not permit any of its Subsidiaries to, solicit for employment or employ any person who was in a senior vice president or more senior position with any of the Sellers and ST shall not and shall cause their Affiliates not to: Companies on the Closing Date; provided that (i) causethe foregoing shall not apply to the Excepted Employees, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage nothing herein shall apply to any material actual or prospective client, customer, supplier or licensor person who has left the employment of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes Companies other than as a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are result of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequateprovision and (iii) the non-solicitation restrictions of this paragraph shall not apply to any general solicitations for employment, such as any newspaper or Internet help wanted advertisement, or any search firm engagement which, in any such case, is not directed or focused on personnel employed by the Companies. ThereforeAs used herein, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction term “Excepted Employees” means the persons set forth in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion 7.06(b) of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damagesSeller Disclosure Schedules. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Acquisition Agreement (Oriental Financial Group Inc)

Non-Competition; Non-Solicitation. (a) For a period Parent understands that, in connection with the purchase of the Membership Interests by Buyer, Buyer shall be entitled to protect and preserve the going concern value of the business of the Company and its Subsidiaries to the extent provided herein and that Buyer would not have entered into this Agreement absent the provisions of this Section 5.20 and, therefore, agrees as follows: (i) from and after the Closing Date until the earlier of (i) 18 months from the date hereof until the later of the fifth anniversary of the Initial Closing Date and (ii) the "Restricted Period")date on which SAMI is no longer entitled to any Contingent Purchase Consideration with respect to periods following such date, ST and the Sellers Parent shall not, and Parent shall cause their Affiliates not topermit any of its Subsidiaries, directly or indirectly, (i) own, manage, operate, control to offer or participate provide in the ownership, management, operation United States of America or control in any foreign jurisdiction in which the Company or its Subsidiaries transacts business as of the Closing Date any business, whether long-only strategy or market neutral strategy asset management products or services that are substantially similar to those long-only strategy and market neutral strategy products and services provided as of the Closing by the Company or its Subsidiaries in corporate, proprietorship the United States of America or partnership form or otherwise, or such foreign jurisdictions (ii) provide consultative or advice services to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a the "Telecommunications CompanyCompeting Products"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in terms of this Section 7.10(a5.20(a)(i) shall not restrict apply to (A) any business engaged in or operated by Parent or any of its Subsidiaries (other than SAMI, the Company and its Subsidiaries) as of the date hereof to the extent operated substantially consistent with past practice; (B) any business or assets that are part of a larger acquisition of assets by Parent or its Subsidiaries, provided that Competing Products give rise to less than 25% of the revenues of such business or assets for the 12-month period immediately preceding the closing of such acquisition; and (C) any business or assets that are part of a passive investment larger acquisition of assets by ST Parent or its Subsidiaries pursuant to an agreement entered into at least six months following the Closing Date even if Competing Products give rise to 25% or more, but in no event greater than 50%, of the revenues of such business or assets for the 12-month period immediately preceding the closing of such acquisition, provided, however, that Parent shall elect by delivery of written notice to Buyer on or prior to the closing date of such acquisition to either (i) divest itself of such business or assets as promptly as practicable following such closing (and in any event within nine months thereafter), in which case the Sellersobligations of Buyer to make payments to SAMI pursuant to Exhibit R shall be suspended upon the closing of such acquisition and no additional payments shall be made thereunder (other than with respect to any payments owing in respect of periods ending prior thereto), but all suspended amounts shall be paid to SAMI by Buyer upon completion of such divestiture if such divestiture is completed within such nine-month period but shall not otherwise be paid to SAMI or (ii) agree that the obligations of Buyer to make payments to SAMI pursuant to Exhibit R hereof shall be extinguished upon such acquisition other than with respect to any payments owing in respect of periods ending prior to the closing of such acquisition, and in the case of subclauses (i) and (ii) above, in no event shall there be any corresponding increase in amounts due to Maestro under Exhibit R hereof; and (ii) until the second anniversary of the Closing Date, Parent shall not, and Parent shall not permit any of its Subsidiaries, directly or indirectly, in the aggregate of less than 5% to solicit, encourage or induce any person employed as of the outstanding capital stock of any company, whether publicly traded date hereof or privately held, engaged in a Restricted Business or, the ownership as of the securities Closing Date by the Company or any of Restricted Businesses set forth in Schedule 7.10 (which amount its Subsidiaries to leave the employment of securities the Company or any of its Subsidiaries; provided that it shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% violation of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwisethis Section 5.2(a)(ii) to or for the benefit engage in general employment solicitation activities, such as newspaper advertisements, that are not directed specifically at employees of the Restricted Business Company or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied withits Subsidiaries. (b) For Maestro and the Restricted Period, Company Principals understand that in connection with the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees purchase of the Membership Interests by Buyer, Buyer or DR Partnership shall be entitled to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor protect and preserve the going concern value of the Business (including any existing or former customer business of the Sellers or Company and its Subsidiaries to the Subsidiaries and any Person that becomes a client or customer extent provided in Section 5 of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any Employment Agreements and that Buyer would not have entered into this Agreement absent entering into such actual or prospective relationshipEmployment Agreements containing such provisions. (c) The Notwithstanding any other provision of this Agreement, it is understood and agreed that remedies at law would be inadequate in the case of any breach of the covenants and undertakings contained in this Section 7.10 relate 5.20, and Buyer shall be entitled to matters which are of a specialequitable relief in respect thereof, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, including the remedy at law for of specific performance, with respect to any breach of this Section 7.10 will be inadequate. Thereforesuch covenants, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity need to show any proof of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damages. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or Notwithstanding any other relevant feature provision of this Agreement to the contrary, the terms of this Section 7.10 5.20 shall cease to apply to Parent and to each of its Subsidiaries upon the sale of all or substantially all of the assets of or equity interests in Parent to a Person that is unreasonable, arbitrary not an Affiliate of Parent or against public policy, then a lesser time period, geographical area, business limitation merger or other relevant feature which business combination between Parent and a Person that is determined by not an Affiliate of Parent where the shareholders of Parent immediately prior to the merger or business combination beneficially own less than 50% of the surviving corporation immediately following such court transaction if Parent so elects and gives written notice to Buyer prior to consummation of such transaction of such election; provided, however, that if such election is made, the obligations of Buyer to make payments to SAMI pursuant to Exhibit R hereof shall be extinguished upon such sale, merger or other business combination other than with respect to any payments owing in respect of periods ending prior to the consummation of such sale without any corresponding increase in amounts due to Maestro. In the event of a sale of all or substantially all of the assets of or equity interests in any Subsidiary of Parent to a Person that is not an Affiliate of Parent, the terms of this Section 5.20 shall cease to apply to such Subsidiary if Parent so elects and gives written notice to Buyer prior to consummation of such transaction of such election; provided, however ,that if such election is made, any sale of all or substantially all of the assets or equity interests of a Subsidiary of Parent that requires the prior approval of Parent's shareholders shall be deemed to be reasonablea sale of all or substantially all of the assets of or equity interests in Parent and the proviso to the first sentence of this Section 5.20(d) shall apply to terminate the obligations of Buyer to make payments pursuant to Exhibit R as set forth in this Section 5.20(d). -57- 63 Section 5.21. Use of Symphony Name. Parent, not arbitrary each of the Members and not against public policy each of the Company Principals agree that from and after the Closing they shall have no rights to the use of the "Symphony" name or mark xx any formatives thereof, and Parent, each of the Members and each of the Company Principals shall take all actions as may be enforced against necessary to terminate within two Business Days of the applicable partyClosing the use of the "Symphony" name or mark xx any formatives thereof by Parent and its controlled Affiliates and each of the Members and their controlled Affiliates, respectively.

Appears in 1 contract

Samples: Acquisition Agreement (Barra Inc /Ca)

Non-Competition; Non-Solicitation. (a) For Except as set forth on Schedule 6.9, for a period of three (3) years from and after the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "Restricted Period")Date, ST Parent and the Sellers Seller shall not, and shall cause their Affiliates each of the respective Subsidiaries (for so long as such Subsidiaries remain, directly or indirectly, Subsidiaries of the Parent or Seller, as the case may be) not to, directly or indirectly, whether independently or in association with any other Person (other than with respect to Purchaser and its Subsidiaries), (i) own any equity interest in, or provide any capital or financing to, a Competitive Business or (ii) engage in, own, manage, operate, control control, provide services to or participate in the ownership, management, operation operation, financing or control of any business, whether in corporate, proprietorship or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the such Competitive Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the . The restrictions contained set forth in this Section 7.10(a) 6.9 shall not be construed to prohibit or restrict the acquisition of a passive any investment by ST Parent and the Sellers, directly Seller (or indirectly, any of their respective Subsidiaries) in the aggregate any class of less than 5% of the outstanding capital stock publicly traded debt or equity securities of any company, whether publicly traded or privately held, company engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Competitive Business so long as ST is Parent or Seller in the aggregate together with their respective Subsidiaries do not employed byhold at any time during such period more than five percent (5%) of such class of issued and outstanding voting securities of such publicly traded company, or five percent (5%) of the aggregate principal amount of such class of debt securities outstanding and, consistent with the remainder of this Section 6.9, so long as Parent or Seller and their respective Subsidiaries do not otherwise engage in any way involved other management, control or business activities with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) respect to or for the benefit of the Restricted Business or the entity in connection with such Restricted Competitive Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For As used in this Agreement, “Competitive Business” means any entity or business which is in competition within the Restricted Period, United States with the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees Business of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor Company as conducted as of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipClosing Date. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damages. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Equity Interest Purchase Agreement (Catalyst Health Solutions, Inc.)

Non-Competition; Non-Solicitation. Employee and the Company agree to the non-competition and non-solicitation provisions of this Article VIII in consideration for the Confidential Information provided by the Company to Employee pursuant to Article VI of this Agreement, to protect the trade secrets and confidential information of the Company or its affiliates disclosed or entrusted to Employee by the Company or its affiliates or created or developed by Employee for the Company or its affiliates, to protect the business goodwill of the Company or its affiliates developed through the efforts of Employee and/or the business opportunities disclosed or entrusted to Employee by the Company or its affiliates and as an additional incentive for the Company to enter into this Agreement. (a) For a period Subject to the exceptions set forth in Section 8.2(b) below, Employee expressly covenants and agrees that during the Prohibited Period (i) Employee will refrain from carrying on or engaging in, directly or indirectly, any Competing Business in the date hereof until the later of the fifth anniversary of the Initial Closing Date Restricted Area and (the "Restricted Period"), ST and the Sellers shall ii) Employee will not, and shall Employee will cause their Affiliates Employee’s affiliates not to, directly or indirectly, (i) own, manage, operate, join, become an employee of, partner in, owner or member of (or an independent contractor to), control or participate in the ownershipin, managementbe connected with or loan money to, operation sell or control of lease equipment or property to, or otherwise be affiliated with any business, whether individual, partnership, firm, corporation or other entity which engages in corporate, proprietorship or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, a Competing Business in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period Area. (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that b) Notwithstanding the restrictions contained in this Section 7.10(a) shall 8.2(a), Employee or any of Employee’s affiliates may own an aggregate of not restrict more than 2% of the acquisition outstanding stock of any class of any corporation engaged in a Competing Business, if such stock is listed on a national securities exchange or regularly traded in the over-the-counter market by a member of a passive investment by ST and national securities exchange, without violating the Sellersprovisions of Section 8.2(a), provided that neither Employee nor any of Employee’s affiliates has the power, directly or indirectly, to control or direct the management or affairs of any such corporation and is not involved in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% management of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipcorporation. (c) The Employee further expressly covenants and undertakings contained in this Section 7.10 relate agrees that during the Prohibited Period, Employee will not, and Employee will cause Employee’s affiliates not to matters (i) engage or employ, or solicit or contact with a view to the engagement or employment of, any person who is an officer or employee of the Company or any of its affiliates or (ii) canvass, solicit, approach or entice away or cause to be canvassed, solicited, approached or enticed away from the Company or any of its affiliates any person who or which are of is a special, unique and extraordinary character and a violation customer of any of such entities during the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of period during which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which Employee is allocated employed by the parties to the foregoing covenant shall not be considered a measure of or limit on such damagesCompany. (d) The parties hereto agree that, if restrictions contained in Section 8.2 shall not apply to any court product or service that the Company provided during Employee’s employment but that the Company no longer provides at the Date of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or Termination. (e) Before accepting employment with any other relevant feature person or entity while employed by the Company during the Prohibited Period, Employee will inform such person or entity of the restrictions contained in this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable partyArticle VIII.

Appears in 1 contract

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

Non-Competition; Non-Solicitation. (a) For a period from the date hereof until the later Each of the fifth Parent, Pilot, Meribel and Quiksilver Americas hereby acknowledges that the agreements and covenants contained in this Section 6.4 are essential to protect the value of the Business being acquired by the Purchaser Parties and serve as an inducement for the Purchaser Parties to enter into this Agreement. During the period (the “Restricted Period”) commencing on the Closing Date and ending on the third anniversary of the Initial Closing Date (Date, except as contemplated by the "Restricted Period")Transition Services Agreement, ST and the Sellers Parent shall not, and shall cause their its Affiliates (including Pilot, Meribel and Quiksilver Americas) not to, directly or indirectly conduct or otherwise engage or participate (whether for itself or through or on behalf of or in conjunction with any Person, as an agent, consultant, shareholder, director (or Person in a similar position), officer, member, manager, partner, joint venturer, investor or in any other capacity or otherwise) in any Winter Sports Hardgoods Activity in any geographic area in which any Acquired Company directly or indirectly conducts or engages in Winter Sports Hardgoods Activities as of the Closing Date; provided, however, that: (i) the foregoing shall not prohibit the acquisition and ownership by the Parent or any of its Affiliates of equity securities of a publicly traded company in an amount not to exceed 2% of the issued and outstanding shares of such company; and (ii) the foregoing shall not prohibit the acquisition, ownership and operation by the Parent or any of its Affiliates, directly or indirectly, of a group of companies (collectively, a “Competing Business”) in which the Winter Sports Hardgoods Activities represent no more than the greater of (A) five percent (5%) of the consolidated revenues of such Competing Business for its fiscal year immediately preceding such acquisition or the commencement of such ownership or operations by the Parent or any of its Affiliates or (B) €25,000,000 in revenues of such Competing Business for the fiscal year immediately preceding such acquisition or the commencement of such ownership or operations by the Parent or any of its Affiliates, provided that the limitations contained in the immediately preceding clauses (A) and (B) shall not prohibit the acquisition of a Competing Business by the Parent or any of its Affiliates in the event that all Winter Sports Hardgoods Activities of such Competing Business shall have been completely divested and no longer directly or indirectly owned or operated by the Parent or any of its Affiliates within 180 Business Days after the date of such acquisition; and (iii) the Parent and its Affiliates shall not be restricted from conducting or engaging or participating in the Winter Sports Hardgoods Activities described in Schedule 6.5(a). For the avoidance of doubt, nothing herein shall prevent or be deemed to prevent the completion of any transaction involving a change of control of the Parent, including any transaction in which the Person acquiring control of the Parent operates a Competing Business. (b) During the Restricted Period, except as contemplated by the Transition Services Agreement, the Parent shall not, and shall cause its controlled Affiliates (including Pilot, Meribel and Quiksilver Americas) not to, directly or indirectly, : (i) own, manage, operate, control or participate except in the ownership, management, operation or control ordinary course of any business, whether in corporate, proprietorship intentionally solicit or partnership form divert any business or otherwise, clients or customers away from any Acquired Company; (ii) provide consultative except in the ordinary course of business, intentionally induce any customers, clients, suppliers, agents or advice services other Persons under contract or otherwise associated or doing business with any Acquired Company, to reduce or alter any individual such association or entity, in either case that is business with such Acquired Company; or (xiii) engaged in production, sale solicit any Listed Employee (other than any Listed Employee whose employment with any Acquired Company has been terminated by such Acquired Company) to (A) terminate such employment or distribution of telecommunication services (a "Telecommunications Company")B) accept employment, or (y) that otherwise competes enter into any consulting arrangement, with the Business, in each case, including any business actually conducted Person other than a Purchaser Party or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around businessany of its Affiliates; provided, however, that that, for the restrictions contained in purposes of this Section 7.10(a6.4(b), such solicitation, diversion or inducement described in the foregoing clauses (i), (ii) and (iii) shall not restrict the acquisition of a passive investment include any general advertisement by ST and the Sellers, directly or indirectly, in the aggregate of less than 5% either of the outstanding capital stock Parent or any of its Affiliates for employment by it, to the extent that such general advertisement is directed at the general public and not at any company, whether publicly traded (A) director (or privately held, engaged Person in a Restricted Business orsimilar position), the ownership officer or employee of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed byAcquired Company, or in any way involved with the Restricted Business and does not provide(B) customers, whether directly clients, suppliers, agents or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ other Persons under contract or otherwise engage associated or doing business with any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipAcquired Company. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damages. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Stock Purchase Agreement (Quiksilver Inc)

Non-Competition; Non-Solicitation. (a) For As a material inducement to the Buyers to enter into this Agreement, the Sellers and the Sellers’ Guarantors agree that, for a period from commencing on the date hereof until the later of the fifth anniversary of the Initial Closing Date and terminating two (2) years after the "Restricted Period")Closing Date, ST and the Sellers shall such Person will not, and shall cause their Affiliates not to, directly or indirectlyindirectly (whether by itself, (ithrough an Affiliate, partnership or otherwise) ownundertake, manageparticipate, operatebe engaged or have any financial or other interest in, control or participate in any other manner advise or assist any other Person in connection with the operation of, a Competing Business anywhere in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around businessworld; provided, however, that (i) in the restrictions contained event that all or substantially all of the equity of a Seller or an Affiliate of a Seller (including the Sellers’ Guarantors), or all or substantially all of the assets of a Seller or an Affiliate of a Seller (including the Sellers’ Guarantors), is sold or otherwise transferred to an unaffiliated third party, this provision will have no further force or effect with respect (A) to such Seller or such Affiliate (in the case of the sale of all or substantially all of the equity of such Seller or such Affiliate) or (B) the acquiror of such Sellers’ or such Affiliate’s assets (in the case of the sale of all or substantially all of the assets of such Seller or such Affiliate), and (ii) this provision will have no further force or effect with respect to an acquisition by any Seller or an Affiliate of any Seller (including the Sellers’ Guarantors) of any business (whether by an acquisition of assets, equity or otherwise) that is involved in designing, developing, marketing, manufacturing, selling or distributing baseball or softball equipment, products, gear, apparel or related accessories (a “Permitted Business”), or the conduct of such Permitted Business following such acquisition; provided, that the gross sales of such Permitted Business during the twelve month period immediately preceding such acquisition did not account for more than five percent (5%) of the aggregate United States market share (on a wholesale or retail basis) of the baseball and softball equipment manufacturing industry; provided, further that such Permitted Business does not design, develop, market, manufacture, sell or distribute any lacrosse equipment, products, gear, apparel or related accessories. The Sellers and the Sellers’ Guarantors acknowledge that any breach of this Section 7.10(a4.10(a) will cause irreparable harm to the Buyers and that the Buyers’ remedy at law will be inadequate. For the avoidance of doubt, this Section 4.10(a) shall not restrict the acquisition of a passive be deemed to limit or otherwise apply to (i) Fenway Partners, LLC or its investment by ST affiliates and the Sellers, directly or indirectly, in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 portfolio companies (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest Xxxxxx-Xxxx Sports, LLC and its Subsidiaries) or (which interest represents no more ii) the Ontario Teachers’ Pension Plan or its investment affiliates and portfolio companies (other than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed byXxxxxx-Xxxx Sports, or in any way involved with the Restricted Business LLC and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied withits Subsidiaries). (b) The Parties agree, for a period of one (1) year from the Closing Date, not to directly or indirectly, solicit or hire for employment or employ any person holding a title of “manager” or higher who is employed by the other Party (or an Affiliate thereof) immediately following the Closing. For the Restricted Periodavoidance of doubt, the Sellers and ST this Section 4.10(b) shall not and shall cause their Affiliates not to: be deemed to apply to (i) cause, solicit, induce or encourage any Employees general solicitations of employment by use of advertisements in the media that are not specifically directed at employees of the Buyer Parties or DR Partnership to leave such employment or hireany of their Affiliates from and after the Closing and the hiring as a result thereof, employ or otherwise engage any such individual; or (ii) causethe solicitation or hiring of any individual that has not been employed by the Parties or any of their Affiliates any time during the six-month period preceding the solicitation or hiring or (iii) the solicitation or hiring by the Buyers’ of any of the “Taiwan-based Product Creation Employees” (as defined in the Transition Services Agreement). For the avoidance of doubt, induce this Section 4.10(b) shall not be deemed to limit or restrict Fenway Partners, LLC, the Ontario Teachers’ Pension Plan, Kohlberg & Co., L.L.C. or any of their respective investment affiliates and portfolio companies. (c) The Sellers and the Sellers’ Guarantors agree, for a period of one (1) year from the Closing Date, not to directly solicit, encourage or influence (or attempt to solicit, encourage or influence), any material actual or prospective client, customer, supplier or licensor customer of the Business (including any existing or former Person who has been a customer of the Business at any time during the 12 month period before the Closing) to alter, reduce or terminate its business relationship with the Buyers or any of their Affiliates. For the avoidance of doubt, this Section 4.10(c) shall not be deemed to limit or otherwise apply to Fenway Partners, LLC, the Ontario Teachers’ Pension Plan or any of their respective investment affiliates and portfolio companies. (d) Accordingly, in the event of a breach or threatened breach of this Section 4.10(a), (b), or (c) by the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR PartnershipSellers’ Guarantors, the amount of which will be impossible Buyers shall have the right to estimate seek temporary or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable permanent injunctive relief from in any court of competent jurisdiction in upon such notice to the event of any breach of this Section 7.10 without Sellers or the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided Sellers’ Guarantors as shall be required by this Section 7.10 are cumulative and applicable law, in addition to and not in substitution for any other rights and remedies which remedy the Buyer or DR Partnership Buyers may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damageshave. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Asset Purchase Agreement

Non-Competition; Non-Solicitation. (a) For a period of three years from the date hereof until Closing Date, Seller agrees that, without the later prior written consent of Buyer, it will not, and will cause its Subsidiaries not to, provide technical, professional and mission support services involving (w) military pre-positioning operations, total package fielding and automated fuel handling, (x) ground-based space mission services, (y) physical and cyber security for facilities of U.S. Government Agencies, or (z) the MSA Services, in each case, in competition with the business of the fifth anniversary of Company as conducted on the Initial Closing Date (a “Competing Business”); provided, however, that nothing in this Section 6.07(a) shall be deemed to limit in any way or preclude Seller or any of its Subsidiaries from: (i) engaging in any activity (other than the "Restricted Period"Business) not conducted by the Company as of the Closing Date; (ii) engaging in any activity for customers other than U.S. Government Agencies conducted by Seller or any Subsidiary of Seller (other than the Company) as of the Closing Date; (iii) providing any services, other than MSA Services, to Seller or any Subsidiary of Seller; provided that Seller and any Subsidiary of Seller may provide MSA Services to Seller or any Subsidiary of Seller in the event Seller provides notice of breach to the Company pursuant to the terms of the MSA; (iv) acquiring any Person or business that engages in any Competing Business; provided that (A)(1) the engagement in such Competing Business does not constitute more than 20% of the revenue of the Person or business to be acquired for the most recent fiscal year of any such Person or business and (2) such Competing Business produced revenues less than $500 million in the aggregate for the most recent fiscal year of such Person or business or (B) if the Competing Business does constitute more than 20% of the revenues of the Person or business to be acquired or such Competing Business produced revenues in excess of $500 million, Seller shall use its reasonable best efforts to divest that portion of such Person or business that engages in the Competing Business within twelve months after its acquisition of the Competing Business; (v) acquiring securities by any pension trust or similar employee benefit plan investment vehicle of Seller (or its Affiliate); provided that any securities acquired shall be held for investment purposes only and such benefit plans comply with ERISA requirements as to the independence of investment decisions; (vi) exercising its rights or complying with its obligations under this Agreement or any of the Ancillary Agreements; or (vii) without limiting the foregoing, ST researching and developing, designing, manufacturing, marketing, offering or selling any product, service or activity listed on Schedule 6.07(a). (b) Notwithstanding anything to the Sellers contrary in this Agreement, the prohibitions in Section 6.07(a) shall not apply to any unaffiliated third party acquirer of Seller and such acquiror’s Affiliates after a change of control of Seller. (c) For a period of three years from the Closing Date, (i) Seller shall not, and shall cause their Affiliates its Subsidiaries not to, without the prior written consent of Buyer, directly or indirectly, solicit for employment any Transferred Employee; provided that (A) neither Seller nor its Subsidiaries will be deemed to have solicited any such Transferred Employee who responds to any general media advertisement or job posting placed by or on behalf of Seller or any of its Subsidiaries, unless, solely to the extent prior to such response, Seller or its Subsidiaries otherwise solicited such Transferred Employee (including by specifically directing such Transferred Employee to such advertisement or posting) and (B) Seller or any of its Subsidiaries may solicit any such Transferred Employee whose employment has been involuntarily terminated by Buyer or its Subsidiaries not less than one year prior to any direct or indirect solicitation by Seller or any of its Subsidiaries; and (ii) Seller shall, and shall cause its Subsidiaries to, instruct all employment search firms engaged by Seller or any of its Subsidiaries not to, directly or indirectly, solicit for employment any Transferred Employee; provided that Seller shall be deemed to not have solicited any Transferred Employee in violation of Section 6.07(c)(i) and to not have violated Section 6.07(c)(ii) if Seller does not, and causes its Subsidiaries not to, without the prior written consent of Buyer, hire or employ from Buyer or its Affiliates any Transferred Employee solicited by such search firm in contravention of Seller’s or its Subsidiaries instructions pursuant to this Section 6.07(c). (id) own, manage, operate, control or participate in In the ownership, management, operation or control event that any of any business, whether in corporate, proprietorship or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions covenants contained in this Section 7.10(a) shall not restrict the acquisition of a passive investment by ST and the Sellers, directly or indirectly, in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement 6.07 shall be complied with. (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from determined by any court of competent jurisdiction to be unenforceable by reason of its extending for too long a period of time or over too large a geographical area or by reason of being too extensive in any other respect, the event of any breach of covenants contained in this Section 7.10 without 6.07 shall be interpreted to extend only over the necessity longest period of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition time for which they may be enforceable, and/or over the largest geographical area as to any other rights and remedies which the Buyer or DR Partnership they may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties be enforceable and/or to the foregoing covenant shall not maximum extent in all other aspects as to which they may be considered a measure of or limit on such damages. (d) The parties hereto agree thatenforceable, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is all as determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable partyin such action.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Kbr, Inc.)

Non-Competition; Non-Solicitation. (a) For a period Parent understands that, in connection with the purchase of the Membership Interests by Buyer, Buyer shall be entitled to protect and preserve the going concern value of the business of the Company and its Subsidiaries to the extent provided herein and that Buyer would not have entered into this Agreement absent the provisions of this Section 5.20 and, therefore, agrees as follows: (i) from and after the Closing Date until the earlier of (i) 18 months from the date hereof until the later of the fifth anniversary of the Initial Closing Date and (ii) the "Restricted Period")date on which SAMI is no longer entitled to any Contingent Purchase Consideration with respect to periods following such date, ST and the Sellers Parent shall not, and Parent shall cause their Affiliates not topermit any of its Subsidiaries, directly or indirectly, (i) own, manage, operate, control to offer or participate provide in the ownership, management, operation United States of America or control in any foreign jurisdiction in which the Company or its Subsidiaries transacts business as of the Closing Date any business, whether long-only strategy or market neutral strategy asset management products or services that are substantially similar to those long-only strategy and market neutral strategy products and services provided as of the Closing by the Company or its Subsidiaries in corporate, proprietorship the United States of America or partnership form or otherwise, or such foreign jurisdictions (ii) provide consultative or advice services to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a the "Telecommunications CompanyCompeting Products"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in terms of this Section 7.10(a5.20(a)(i) shall not restrict apply to (A) any business engaged in or operated by Parent or any of its Subsidiaries (other than SAMI, the Company and its Subsidiaries) as of the date hereof to the extent operated substantially consistent with past practice; (B) any business or assets that are part of a larger acquisition of assets by Parent or its Subsidiaries, provided that Competing Products give rise to less than 25% of the revenues of such business or assets for the 12-month period immediately preceding the closing of such acquisition; and (C) any business or assets that are part of a passive investment larger acquisition of assets by ST Parent or its Subsidiaries pursuant to an agreement entered into at least six months following the Closing Date even if Competing Products give rise to 25% or more, but in no event greater than 50%, of the revenues of such business or assets for the 12-month period immediately preceding the closing of such acquisition, provided, however, that Parent shall elect by delivery of written notice to Buyer on or prior to the closing date of such acquisition to either (i) divest itself of such business or assets as promptly as practicable following such closing (and in any event within nine months thereafter), in which case the Sellersobligations of Buyer to make payments to SAMI pursuant to Exhibit R shall be suspended upon the closing of such acquisition and no additional payments shall be made thereunder (other than with respect to any payments owing in respect of periods ending prior thereto), but all suspended amounts shall be paid to SAMI by Buyer upon completion of such divestiture if such divestiture is completed within such nine-month period but shall not otherwise be paid to SAMI or (ii) agree that the obligations of Buyer to make payments to SAMI pursuant to Exhibit R hereof shall be extinguished upon such acquisition other than with respect to any payments owing in respect of periods ending prior to the closing of such acquisition, and in the case of subclauses (i) and (ii) above, in no event shall there be any corresponding increase in amounts due to Maestro under Exhibit R hereof; and (ii) until the second anniversary of the Closing Date, Parent shall not, and Parent shall not permit any of its Subsidiaries, directly or indirectly, in the aggregate of less than 5% to solicit, encourage or induce any person employed as of the outstanding capital stock of any company, whether publicly traded date hereof or privately held, engaged in a Restricted Business or, the ownership as of the securities Closing Date by the Company or any of Restricted Businesses set forth in Schedule 7.10 (which amount its Subsidiaries to leave the employment of securities the Company or any of its Subsidiaries; provided that it shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% violation of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwisethis Section 5.2(a)(ii) to or for the benefit engage in general employment solicitation activities, such as newspaper advertisements, that are not directed specifically at employees of the Restricted Business Company or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied withits Subsidiaries. (b) For Maestro and the Restricted Period, Company Principals understand that in connection with the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees purchase of the Membership Interests by Buyer, Buyer or DR Partnership shall be entitled to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor protect and preserve the going concern value of the Business (including any existing or former customer business of the Sellers or Company and its Subsidiaries to the Subsidiaries and any Person that becomes a client or customer extent provided in Section 5 of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any Employment Agreements and that Buyer would not have entered into this Agreement absent entering into such actual or prospective relationshipEmployment Agreements containing such provisions. (c) The Notwithstanding any other provision of this Agreement, it is understood and agreed that remedies at law would be inadequate in the case of any breach of the covenants and undertakings contained in this Section 7.10 relate 5.20, and Buyer shall be entitled to matters which are of a specialequitable relief in respect thereof, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, including the remedy at law for of specific performance, with respect to any breach of this Section 7.10 will be inadequate. Thereforesuch covenants, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity need to show any proof of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damages. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or Notwithstanding any other relevant feature provision of this Agreement to the contrary, the terms of this Section 7.10 5.20 shall cease to apply to Parent and to each of its Subsidiaries upon the sale of all or substantially all of the assets of or equity interests in Parent to a Person that is unreasonable, arbitrary not an Affiliate of Parent or against public policy, then a lesser time period, geographical area, business limitation merger or other relevant feature which business combination between Parent and a Person that is determined by not an Affiliate of Parent where the shareholders of Parent immediately prior to the merger or business combination beneficially own less than 50% of the surviving corporation immediately following such court transaction if Parent so elects and gives written notice to Buyer prior to consummation of such transaction of such election; provided, however, that if such election is made, the obligations of Buyer to make payments to SAMI pursuant to Exhibit R hereof shall be extinguished upon such sale, merger or other business combination other than with respect to any payments owing in respect of periods ending prior to the consummation of such sale without any corresponding increase in amounts due to Maestro. In the event of a sale of all or substantially all of the assets of or equity interests in any Subsidiary of Parent to a Person that is not an Affiliate of Parent, the terms of this Section 5.20 shall cease to apply to such Subsidiary if Parent so elects and gives written notice to Buyer prior to consummation of such transaction of such election; provided, however, that if such election is made, any sale of all or substantially all of the assets or equity interests of a Subsidiary of Parent that requires the prior approval of Parent's shareholders shall be deemed to be reasonable, not arbitrary a sale of all or substantially all of the assets of or equity interests in Parent and not against public policy may be enforced against the applicable partyproviso to the first sentence of this Section 5.20(d) shall apply to terminate the obligations of Buyer to make payments pursuant to Exhibit R as set forth in this Section 5.20(d).

Appears in 1 contract

Samples: Acquisition Agreement (Nuveen John Company)

Non-Competition; Non-Solicitation. (a) For a period From and after Closing Date until the date that is 18 months from the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "Restricted Period"), ST each of the Sellers, Validus Group, CVA Holdings II, Strat Cap, Xxxxx Xxxxxx, Xx., Xxxx X. Xxxxxx, and Xxxxxx X. Xxxxxxx (collectively, solely for the Sellers purpose of this Section 4.09, the “Restricted Parties”), shall not, and shall cause their respective Affiliates not to, (i) engage in, directly or indirectly, in any capacity (i) own, manage, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to sponsoring, acting as advisor to or managing), or have any direct or indirect ownership interest in, or permit such Restricted Party’s or any such Affiliate’s name or other intellectual property to be used in connection with, any real estate program or pooled investment vehicle (whether private or public) that is engaged in the prepaid wireless business of acquiring, owning and/or operating Healthcare Assets in the United States (the “Restricted Healthcare Business”), (ii) enter into or prepaid calling cardattempt to enter into, carrier wholesale and dial-around businessor otherwise seek to impair or interfere with the REIT’s ability to enter into, any agreement to provide property management, property accounting or leasing services with respect to any properties or portfolios that the REIT disposes or sells (the “Restricted Management Business”, together with the Restricted Healthcare Business, the “Restricted Business”); provided, however, that the Restricted Parties and their Affiliates may, subject to the provisions of Section 4.09(b) through (f): (A) own equity interests, indebtedness or other securities representing not more than five percent (5%) of the equity capital of a public entity that is engaged in the Restricted Healthcare Business, so long as the Restricted Party shall not be involved or associated with the management or policy making functions of such entity, including, but not limited to serving as a director on such entity’s board of directors or performing similar functions for such entity; (B) engage in the business and activities conducted by any Restricted Party as of the Effective Date, all of which are listed in Schedule 4.09(a)(ii)(B); or (C) own, operate or lease, directly or indirectly, Healthcare Assets acquired as a result of loss mitigation, foreclosure or similar activities in connection with or incidental to any of the Seller’s or any of the Sellers’ respective Affiliates’ investments in mortgage loans, mortgage servicing rights, mortgage-backed securities or other mortgage-related assets, all of which are listed in Schedule 4.09(a)(ii)(C). It is recognized that the Restricted Business is expected to be conducted in the United States and that more narrow geographical limitations of any nature on this non-competition covenant (and the non-solicitation covenants set forth in Section 4.09(c)) are therefore not appropriate. (b) Notwithstanding anything to the contrary in this Agreement, during the Restricted Period, the Restricted Parties shall not, and shall cause their respective Affiliates not to, (i) solicit, initiate, knowingly encourage, assist or respond to the submission of any proposal or offer from any Person relating to the provision of property management, asset management or other advisory services to Mapletree, other than with respect to any properties or portfolios that a Restricted Party sells to Mapletree (a “Mapletree Management Proposal”), (ii) participate in, continue or cooperate in any discussions or negotiations regarding, or furnish to any other Person any information with respect to, any effort or attempt by any Person to make a Mapletree Management Proposal, (iii) enter into any agreement with respect to a Mapletree Management Proposal, or (iv) seek to induce or otherwise cause Mapletree or any of its affiliates, whether by contract or otherwise, to discontinue or alter its business relationship with the REIT or any of the REIT’s Affiliates in a manner that is adverse to the REIT or any of the REIT’s Affiliates. (c) Each Restricted Party covenants that, during the Restricted Period, such Restricted Party shall not, and it shall cause its Affiliates not to, solicit the employment or engagement of services of any Person who is, or was during the three-month period immediately prior to such solicitation, employed as an employee, contractor or consultant (other than, for the sake of clarity, any such consultant employed by such Restricted Party or its Affiliates) by the REIT or the OP or any of their subsidiaries (including Manager Sub) during such period on a full- or part-time basis. The foregoing shall not prohibit any general solicitation of employees, contractors or consultants or public advertising of employment opportunities (including through the use of employment agencies) not specifically directed at any such employees, contractors or consultants, nor shall it prohibit the Sellers or their Affiliates from hiring any such employee, contractor or consultant who seeks employment or engagement with the Sellers or their Affiliates on his or her own initiative at any time after three months have elapsed since such individual served as an employee, contractor or consultant otherwise subject to this restriction, without any prior solicitation by the Sellers or any of their Affiliates. (d) Each Restricted Party acknowledges that the restrictions contained in this Section 7.10(a) shall not restrict 4.09 are reasonable and necessary to protect the acquisition legitimate interests of a passive investment by ST the REIT and the Sellers, directly or indirectly, in OP and constitute a material inducement to the aggregate of less than 5% of REIT and the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) OP to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of enter into this Agreement shall be complied with. (b) For and consummate the Transactions. Each Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage Party acknowledges that any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause 4.09 may result in irreparable injury to the Buyer REIT or DR Partnership, the amount of which will be impossible to estimate OP and agrees that the REIT or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will OP shall be entitled to an injunctionseek preliminary and permanent injunctive relief, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any bond whatsoever. The rights and remedies provided by violation of this Section 7.10 are 4.09, which rights shall be cumulative and in addition to any other rights and or remedies to which the Buyer or DR Partnership REIT and the OP may have hereunder or at law or in equity. be entitled. (e) In the event that any covenant contained in this Section 4.09 should ever be adjudicated to exceed the Buyer time, geographic, product or DR Partnership were service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to seek damages for reform such covenant, and such covenant shall be deemed reformed in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 4.09 and each provision thereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any breach such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction. (f) Notwithstanding anything to the contrary contained in this Agreement, if there is a Change of Control Event, the provisions of this Section 7.10, 4.09 will automatically terminate and have no further force or effect. “Change of Control Event” means (A) the portion sale of all or substantially all of the Purchase Price which is allocated assets of the REIT or the OP, or (B) a merger, consolidation, recapitalization or reorganization of the REIT, unless securities representing more than 50% of the total voting power after such merger, consolidation, recapitalization or reorganization are beneficially owned, directly or indirectly, by the parties Persons who beneficially owned the REIT’s outstanding voting securities immediately prior to the foregoing covenant shall not be considered a measure of or limit on such damagestransaction. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Membership Interest Purchase Agreement (Carter Validus Mission Critical REIT II, Inc.)

Non-Competition; Non-Solicitation. The Executive and the Company agree to the non-competition and non-solicitation provisions of this Paragraph 10(i) in consideration for the Confidential Information provided by the Company to the Executive pursuant to Paragraph 9; (ii) as part of the consideration for the compensation and benefits to be paid to the Executive hereunder; (iii) to protect the trade secrets and confidential information of the Company or its Affiliates disclosed or entrusted to the Executive by the Company or its Affiliates or created or developed by the Executive for the Company or its Affiliates, the business goodwill of the Company or its Affiliates developed through the efforts of the Executive and/or the business opportunities disclosed or entrusted to the Executive by the Company or its Affiliates; and (iv) as an additional incentive for the Company to enter into this Agreement. (i) Subject to the exceptions set forth in Paragraph 10(b)(ii), the Executive covenants and agrees that during the Prohibited Period (a) For a period the Executive will refrain from carrying on or engaging in, directly or indirectly, any Competing Business in the date hereof until Restricted Area and (b) the later of the fifth anniversary of the Initial Closing Date (the "Restricted Period"), ST and the Sellers shall Executive will not, and shall the Executive will cause their Affiliates the Executive’s affiliates not to, directly or indirectly, (i) own, manage, operate, join, become an employee, partner, owner or member of (or an independent contractor to), control or participate in the ownershipor loan money to, management, operation sell or control of lease equipment to or sell or lease real property to any business, whether individual, partnership, firm, corporation or other entity which engages in corporate, proprietorship or partnership form or otherwise, or a Competing Business in the Restricted Area. (ii) provide consultative or advice services to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that Notwithstanding the restrictions contained in this Section 7.10(a) shall Paragraph 10(b)(i), the Executive or any of the Executive’s affiliates may own an aggregate of not restrict more than 1% of the acquisition outstanding voting securities of any class of an entity engaged in a Competing Business, if such securities are listed on a national securities exchange or regularly traded in the over-the-counter market by a member of a passive investment by ST and national securities exchange, without violating the Sellersprovisions of Paragraph 10(b), provided that neither the Executive nor any of the Executive’s affiliates (A) has the power, directly or indirectly, to control or direct the management or affairs of such entity and (B) is involved in the aggregate management of less than 5% such entity. (iii) The Executive further covenants and agrees that during the Prohibited Period, the Executive will not, and the Executive will cause the Executive’s affiliates not to (a) engage or employ, or solicit or contact with a view to the engagement or employment of, any person who is an officer or employee of the outstanding capital stock Company or any of its Affiliates or (b) canvass, solicit, approach or entice away or cause to be canvassed, solicited, approached or enticed away from the Company or any of its Affiliates any person who or which is a customer of any company, whether publicly traded or privately held, engaged in a Restricted Business or, of such entities during the ownership period during which the Executive is employed by the Company. (iv) The Executive may seek the written consent of the securities Company, which may be withheld for any or no reason, to waive the provisions of Restricted Businesses this Paragraph 10 on a case-by-case basis. (v) The Executive recognizes that the Executive is a high-level, executive employee who will be provided with access to trade secrets as part of the Executive’s employment and that the restrictive covenants set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assetsthis Paragraph 10(b) are reasonable and necessary in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit light of the Restricted Business or the entity in connection with such Restricted Business; Executive’s position and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury access to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damagesCompany’s trade secrets. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Employment Agreement (Dril-Quip Inc)

Non-Competition; Non-Solicitation. Executive and the Company agree to the non-competition and non-solicitation provisions of this Article VIII in consideration for the Confidential Information provided by the Company and its affiliates to Executive pursuant to Article V of this Agreement, to protect the trade secrets and confidential information of the Company or its affiliates disclosed or entrusted to Executive by the Company or its affiliates or created or developed by Executive for the Company or its affiliates, to protect the business goodwill of the Company or its affiliates developed through the efforts of Executive and/or the business opportunities disclosed or entrusted to Executive by the Company or its affiliates and as an additional incentive for the Company to enter into this Agreement. (a) For a period Subject to the exceptions set forth in Section 8.2(b) below, Executive expressly covenants and agrees that during the Prohibited Period (i) Executive will refrain from carrying on or engaging in, directly or indirectly, any Competing Business in the date hereof until the later of the fifth anniversary of the Initial Closing Date Restricted Area and (the "Restricted Period"), ST and the Sellers shall ii) Executive will not, and shall Executive will cause their Affiliates Executive’s affiliates not to, directly or indirectly, (i) own, manage, operate, join, become an employee of, partner in, owner or member of (or an independent contractor to), control or participate in the ownershipin, managementbe connected with or loan money to, operation sell or control of lease equipment or property to, or otherwise be affiliated with any business, whether individual, partnership, firm, corporation or other entity which engages in corporatea Competing Business in the Restricted Area, proprietorship as Executive expressly agrees that each of the foregoing activities would represent carrying on or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, engaging in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Competitive Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period as prohibited by this Section 8.2(a). (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that b) Notwithstanding the restrictions contained in this Section 7.10(a) shall 8.2(a), Executive or any of Executive’s affiliates may own an aggregate of not restrict more than 2% of the acquisition outstanding stock of any class of any corporation engaged in a Competing Business, if such stock is listed on a national securities exchange or regularly traded in the over-the-counter market by a member of a passive investment by ST and national securities exchange, without violating the Sellersprovisions of Section 8.2(a), provided that neither Executive nor any of Executive’s affiliates has the power, directly or indirectly, to control or direct the management or affairs of any such corporation and is not involved in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% management of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipcorporation. (c) The Executive further expressly covenants and undertakings contained in this Section 7.10 relate agrees that during the Prohibited Period, Executive will not, and Executive will cause Executive’s affiliates not to matters (i) engage or employ, or solicit or contact with a view to the engagement or employment of, or recommend or refer to any person or entity (other than the Company or one of its affiliates) for engagement or employment any person who is an officer or employee of the Company or any of its affiliates or (ii) canvass, solicit, approach or entice away or cause to be canvassed, solicited, approached or enticed away from the Company or any of its affiliates any person or entity who or which are of is a special, unique and extraordinary character and a violation customer of any of such entities during the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of period during which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which Executive is allocated employed by the parties to the foregoing covenant shall not be considered a measure of or limit on such damagesCompany. (d) The parties hereto agree thatrestrictions contained in Section 8.2 shall not apply to any product or service that Forum provided during Executive’s employment but that Forum no longer provides at the Date of Termination. Further, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any notwithstanding the other relevant feature provisions of this Section 7.10 is unreasonable8.2, arbitrary within the State of Oklahoma, the restrictions of Sections 8.2(a) and 8.2(c)(ii) shall be limited to preventing Executive from directly soliciting the sale of goods, services or against public policya combination of goods and services from any established customer of the Company, then a lesser time periodas may exist from time-to-time. (e) Before accepting employment with any other person or entity while employed by the Company or during the Prohibited Period, geographical area, business limitation the Executive will inform such person or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against entity of the applicable partyrestrictions contained in this Article VIII.

Appears in 1 contract

Samples: Employment Agreement (Forum Energy Technologies, Inc.)

Non-Competition; Non-Solicitation. The Employee and the Company agree to the non-competition and non-solicitation provisions of this Exhibit A in consideration for the confidential information provided by the Company and its affiliates to the Employee pursuant to the Employee’s employment with the Company and its affiliates, to further protect the trade secrets and confidential information disclosed or entrusted to the Employee or created or developed by the Employee for the Company or its affiliates, to protect the business goodwill of the Company and its affiliates developed through the efforts of the Employee and the business opportunities disclosed or entrusted to the Employee and the other legitimate business interests of the Company and its affiliates, and as an express incentive for the Company to enter into the RSU Agreement. (a) For a period Subject to the exceptions set forth in Section 2(b) below, the Employee expressly covenants and agrees that during the Prohibited Period, the Employee will refrain from the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "Restricted Period"), ST and the Sellers shall not, and shall cause their Affiliates not tocarrying on or engaging in, directly or indirectly, (i) any Business in competition with the Company or its affiliates in the Restricted Area. Accordingly, the Employee will not, directly or indirectly, own, manage, operate, join, become an employee of, partner in, owner, or member of (or an independent contractor to), control or participate in, be connected with or loan money to, sell or lease equipment or property to, or otherwise be affiliated with any Competing Business in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, or Restricted Area. (iib) provide consultative or advice services to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that Notwithstanding the restrictions contained in this Section 7.10(a) shall 2(a), the Employee or any of Employee’s affiliates may own an aggregate of not restrict more than 2% of the acquisition outstanding stock of any class of any corporation that is a Competing Business, if such stock is listed on a national securities exchange or regularly traded in the over-the-counter market by a member of a passive investment by ST and national securities exchange, without violating the Sellersprovisions of Section 2(a), provided that neither the Employee nor any of the Employee’s affiliates has the power, directly or indirectly, to control or direct the management or affairs of any such corporation and is not involved in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% management of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipcorporation. (c) The Employee further expressly covenants and undertakings contained in this Section 7.10 relate agrees that during the Prohibited Period, the Employee will not, and the Employee will cause the Employee’s affiliates not, to matters %3. engage or employ, or solicit or contact with a view to the engagement or employment of, any person who is an officer or employee of the Company or any of its affiliates, or %3. canvass, solicit, approach, or entice away, or cause to be canvassed, solicited, approached, or enticed away, from the Company or any of its affiliates any person who or which are of is a special, unique and extraordinary character and a violation customer of any of such entities during the terms period during which the Employee was employed by the Company or any of its affiliates. Notwithstanding the foregoing, the restrictions of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which can2(c) shall not be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled apply with respect to an injunction, restraining order officer or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights employee who responds to a general solicitation that is not specifically directed at officers and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion employees of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure Company or any of or limit on such damagesits affiliates. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or Before accepting employment with any other relevant feature person or entity during the Prohibited Period, the Employee will inform such person or entity of the restrictions contained in this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.Exhibit A.

Appears in 1 contract

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

Non-Competition; Non-Solicitation. (ai) For a period from Executive and the date hereof until Company agree to the later non-competition and non-solicitation provisions of this Section 9(b); (i) in consideration for the Proprietary Information provided by the Company to Executive pursuant to Section 8 of this Agreement; (ii) as part of the fifth anniversary consideration for the compensation and benefits to be paid to Executive hereunder; (iii) to protect the Proprietary Information of the Initial Closing Date Company or its Affiliates disclosed or entrusted to Executive by the Company or its Affiliates or created or developed by Executive for the Company or its Affiliates, the business goodwill of the Company or its Affiliates developed through the efforts of Executive and/or the business opportunities disclosed or entrusted to Executive by the Company or its Affiliates; and (iv) as an additional incentive for the "Company to enter into this Agreement. (ii) Subject to the exceptions set forth in Section 9(b)(iii) below, Executive expressly covenants and agrees that during the Prohibited Period (i) Executive will refrain from carrying on or engaging in, directly or indirectly, any Competing Business in the Restricted Period"), ST Area and the Sellers shall (ii) Executive will not, and shall Executive will cause their Affiliates Executive’s affiliates not to, directly or indirectly, (i) own, manage, operate, join, become an employee, partner, owner or member of (or an independent contractor to), control or participate in the ownershipor loan money to, management, operation sell or control of lease equipment to or sell or lease real property to any business, whether individual, partnership, firm, corporation or other entity which engages in corporate, proprietorship or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, a Competing Business in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period Area. (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that iii) Notwithstanding the restrictions contained in this Section 7.10(a) shall 9(b)(ii), Executive or any of Executive’s affiliates may own an aggregate of not restrict more than 1% of the acquisition outstanding stock of any class of any corporation engaged in a Competing Business, if such stock is listed on a national securities exchange or regularly traded in the over-the-counter market by a member of a passive investment by ST and national securities exchange, without violating the Sellersprovisions of Section 9(b)(ii), provided that neither Executive nor any of Executive’s affiliates has the power, directly or indirectly, to control or direct the management or affairs of any such corporation and is not involved in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% management of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied withcorporation. (biv) For Executive further expressly covenants and agrees that during the Restricted Prohibited Period, the Sellers Executive will not, and ST shall Executive will cause Executive’s affiliates not and shall cause their Affiliates not to: to (i) causeengage or employ, solicitor solicit or contact with a view to the engagement or employment of, induce any person who is an officer or encourage any Employees employee of the Buyer Company or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; of its Affiliates or (ii) causecanvass, induce solicit, approach or encourage entice away or cause to be canvassed, solicited, approached or enticed away from the Company or any material actual of its Affiliates any person who or prospective client, customer, supplier or licensor of the Business (including any existing or former which is a customer of any of such entities during the Sellers or period during which Executive is employed by the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipCompany. (cv) The Executive expressly recognizes that Executive is a high-level, executive employee who will be provided with access to Proprietary Information and trade secrets as part of Executive’s employment and that the restrictive covenants and undertakings contained set forth in this Section 7.10 relate to matters which 9 are reasonable and necessary in light of a special, unique Executive’s executive position and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury access to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damagesProprietary Information. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Employment Agreement (Patterson Uti Energy Inc)

Non-Competition; Non-Solicitation. (a) For a period from of four (4) years commencing on the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "Restricted Period"), ST and the Sellers Seller shall not, and shall cause their its Affiliates not to, directly or indirectly, in the Territory, (i) ownengage in or assist others in engaging in any business that sells, managemarkets, operatedistributes, control services or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwisesupports Acumatica cloud ERP products and/or services, or (ii) provide consultative have an interest in any Person that sells, markets, distributes, services or advice services to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Businesssupports Acumatica cloud ERP products and/or services, in each casecase in any capacity, including any business actually conducted as a partner, shareholder, member, employee, principal, agent, trustee or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in this Section 7.10(a) shall not restrict the acquisition of a passive investment by ST and the Sellers, directly or indirectly, in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For a period of five (5) years commencing on the Restricted PeriodClosing Date , neither Seller nor any of its Affiliates may directly or indirectly hire or solicit any employee of Buyer directly or indirectly engaged in the Sellers and ST shall not and shall cause their Affiliates not to: (i) causeBusiness, solicit, induce or encourage any Employees of the Buyer or DR Partnership such employee to leave such employment or hire, employ or otherwise engage hire any such individual; or employee who has left such employment within six (ii6) months of such termination date, except pursuant to a general solicitation which is not directed specifically to any such employees. (c) For a period of five (5) years commencing on the Closing Date , neither Seller nor any of its Affiliates may cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer client, customer, supplier or licensor of the Sellers or the Subsidiaries Seller and any Person that becomes a client client, customer, supplier or customer licensor of the Business after the Initial Closing) ), or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damages. (d) The parties hereto agree that, if any court of competent jurisdiction Seller acknowledges that the restrictive covenants in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is 6.03 are reasonable and are necessary to protect and preserve the value of the Purchased Assets and to prevent any unfair advantage being conferred on Seller. If any of the restrictive covenants set forth herein are held to be unreasonable, arbitrary arbitrary, or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court the Restricted Period will be deemed to be reasonablethe longest period permissible by law under the circumstances and the restrictive geographical area herein will be deemed to comprise the largest territory permissible by law under the circumstances. In the event of a breach of any covenant set forth herein, the Restricted Period will be extended by the period of the duration of such breach. (e) Seller acknowledges that a material breach or threatened material breach of this Section 6.03 would give rise to irreparable harm to Buyer, for which monetary damages would not arbitrary be an adequate remedy, and not against public policy hereby agrees that in the event of a material breach or a threatened material breach by Seller of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be enforced against the applicable partyavailable to it in respect of such material breach, be entitled to seek equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond), and Seller shall not unreasonably object to Buyer’s request for such equitable relief.

Appears in 1 contract

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

Non-Competition; Non-Solicitation. (a) For Seller understands that Buyer shall be entitled to protect and preserve the going concern value of the Business to the extent permitted by Law and that Buyer would not have entered into this Agreement absent the provisions of this Section 7.6 and, therefore, subject to the provisions of this Section 7.6(a), Seller agrees that for a period of three years from the date hereof until the later Closing Date, neither Seller nor any controlled Affiliate of the fifth anniversary of the Initial Closing Date (the "Restricted Period"), ST and the Sellers shall not, and shall cause their Affiliates not toSeller shall, directly or indirectly, (i) own, manage, operate, control or participate engage in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, in either case business activity that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the BusinessBusiness (each, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"“Competitive Activity”), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in this Section 7.10(a) it shall not restrict be deemed to be a violation of this subsection for Seller or any of its Affiliates: (i) to invest in any Person which invests in, manages or operates a Competitive Activity, so long as Seller’s or its Affiliate’s investment is less than 25% of the acquisition of a passive investment by ST outstanding ownership interest in such Person and the SellersSeller does not, directly or indirectly, control such Person or Competitive Activity; (ii) to acquire a third party, or one or more lines of business of a third party, that engages in a Competitive Activity by merger or a purchase of shares or assets of a third party so long as the aggregate annual Operating Income of less than 5such third party attributable to such Competitive Activity for the most recent fiscal year of such third party preceding the acquisition does not exceed 25% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership aggregate annual Operating Income during such period for all of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consentbusinesses or operations acquired from such third party; provided furtherprovided, however, ST may be employed by that in the event of any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5such acquisition where the aggregate annual Operating Income related to the Competitive Activity exceeds 25% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed byaggregate annual Operating Income, or in any way involved with Seller shall be required to divest such Competitive Activity within 18 months of the Restricted Business and does not provide, whether directly or indirectly, any service acquisition of such Competitive Activity; (whether as consultant, advisor or otherwiseiii) to or own any securities through any employee benefit plan; (iv) to perform any Competitive Activity for the benefit of the Restricted Business Buyer or the entity in connection with such Restricted Business; and further provided the confidentiality provisions any of its Affiliates as required or contemplated by this Agreement or any Ancillary Agreement; or (v) to engage in (a) any business conducted by Seller or its Affiliates at Closing other than the Business, (b) the marketing, packaging or distributing of automotive lubricants, chemicals, appearance products and antifreeze for the automotive and truck after market, and (c) the Retained Overlapping Businesses; it being understood and agreed that Seller and its Affiliates shall not be complied withpermitted to engage in the manufacture, sale and/or provision of process chemicals and additives for scale control, corrosion control or biocides, in each case in boiler or cooling water applications. (b) For Notwithstanding anything to the Restricted Periodcontrary, the Sellers and ST foregoing covenant shall not and shall cause their apply with respect to any Person or its Affiliates not to: (i) cause, solicit, induce that acquires an interest in all or encourage any Employees portion of the Buyer stock or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor assets of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) Seller or any other of its Affiliates and whether or not prior to such acquisition such Person who has or its Affiliates were already engaged in a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipCompetitive Activity. (c) The Buyer and Seller agree that the covenants included in Section 7.6 (a) and undertakings contained (b) are, taken as a whole, reasonable in this Section 7.10 relate their geographic and temporal coverage and are necessary to matters which are of a special, unique and extraordinary character and a violation of any protect the goodwill of the terms businesses of this the Business and the substantial investment made by Buyer, and Seller shall not raise any issue of geographic or temporal reasonableness in any proceeding to enforce such covenant; provided, however, that if the provisions of Section 7.10 will cause irreparable injury 7.6 (a) and (b) should ever be deemed to exceed the time or geographic limitations or any other limitations permitted by applicable Law in any jurisdiction, then such provisions shall be deemed reformed in such jurisdiction to the Buyer or DR Partnership, the amount of which will minimum extent required by applicable Law to cure such problem and such provisions shall be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on enforced with such damagesreforms. (d) The parties hereto agree thatFrom and after the Closing for a period of two years following the Closing, if Seller agrees that neither it nor its Affiliates will, without Buyer’s prior written consent, directly or indirectly (including, without limitation, through Seller’s or its Affiliates’ representatives), solicit for employment (whether as an employee, consultant or temporary employee) any court of competent jurisdiction in a final nonappealable judgment determines Transferred Employee, except that a specified time period, a specified geographical area, a specified business limitation this paragraph shall not preclude Seller or any other relevant feature person from entering into discussions with or soliciting any person (i) who responds to any public advertisement or general solicitation or who is contacted by the soliciting party’s recruitment agency (provided that the soliciting party did not instruct such agency to target the other party’s employees or such employee specifically, or (ii) has been terminated by Buyer or its Affiliates three months prior to commencement of discussions with the soliciting party. (e) From and after the Closing for a period of two years following the Closing, Buyer agrees that neither it nor its Affiliates will, without Seller’s prior written consent, directly or indirectly (including, without limitation, through Buyer’s or its Affiliates’ representatives), solicit for employment (whether as an officer, director, employee, consultant or temporary employee) any officer, director or employee of Seller or any of Seller’s Affiliates, except that this paragraph shall not preclude Buyer or any other person from entering into discussions with or soliciting any person (i) who responds to any public advertisement or general solicitation or who is contacted by the soliciting party’s recruitment agency (provided that the soliciting party did not instruct such agency to target the other party’s employees or such employee specifically), (ii) who initiates discussions with the soliciting party regarding such employment on his or her own initiative and without any direct or indirect solicitation by the soliciting party, its representatives or its Affiliates or (iii) has been terminated by Seller or its Affiliates three months prior to commencement of discussions with the soliciting party. (f) For purposes of this Section 7.10 is unreasonable7.6, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.following terms shall have the meanings set forth below:

Appears in 1 contract

Samples: Stock and Asset Purchase Agreement (Ashland Inc.)

Non-Competition; Non-Solicitation. (a) For a period from of four (4) years after the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "Restricted Period")Date, ST and the Sellers shall Seller will not, and shall will cause their its Affiliates (including the Parent Group) not to, directly or indirectly, (i) ownengage in any business anywhere in the world that competes with the Plastics Business or the Transferred Entities, or own an interest in, manage, operate, control join, control, lend money or render financial or other assistance to or participate in the ownershipor be connected with, managementas a partner, operation or control of any businessshareholder, whether in corporatemember, proprietorship or partnership form director, consultant or otherwise, or (ii) provide consultative or advice services to any individual or entity, in either case Person that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted Plastics Business or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around businessTransferred Entities; provided, however, that the restrictions contained in this Section 7.10(a) shall not restrict that, the acquisition of a passive investment by ST and the Sellers, directly or indirectly, in the aggregate ownership of less than 5% of the outstanding capital stock ownership or voting power of any company, whether publicly traded Person listed on any national securities exchange will not be deemed to be in violation of this Section 7.09(a) as long as Seller or privately held, engaged in such Affiliate (including the Parent Group) of Seller owning such securities has no other connection or relationship with such Person listed on the applicable national securities exchange; and that this Section 7.09(a) shall not prohibit or be breached as a Restricted Business or, the ownership result of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided furtherexistence, howeverownership, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income operations or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit activities of the Restricted Business or Distrupol businesses of Parent Group in substantially the entity same manner and scope in connection with which such Restricted Business; businesses were owned, operated and further provided engaged on the confidentiality provisions of this Agreement shall be complied withDate. (b) For From the Restricted PeriodClosing Date until the date that is six (6) months after the date on which transition services cease to be provided by either Party pursuant to the Transition Services Agreement, the Sellers neither Party shall, and ST shall not and each shall cause their its respective Affiliates (including the Transferred Entities, in the case of Buyer, and the Parent Group, in the case of Seller) not to: , directly or indirectly, solicit for employment any Continuing Employee, in the case of Seller, or employee of Seller or its Affiliates (including the Parent Group), in the case of Buyer, in each case, that is a sales professional or has the title of vice president or senior director, or any more senior title; provided, however, that the foregoing will not restrict either Party’s or its respective Affiliates’ (including in the case of Seller the Parent Group) ability (i) causeto conduct generalized searches for officers or employees, solicitincluding through search firms, induce bona fide public advertisements on websites or encourage any Employees in periodicals of the Buyer or DR Partnership to leave general circulation, so long as such employment or hire, employ or otherwise engage searches are not targeted at any such individual; employees (or to hire any person as a result of such searches), or (ii) cause, induce to solicit (or encourage hire) any material actual person whose employment has been terminated by the other Party or prospective client, customer, supplier who initiates employment discussions with such Party or licensor of the Business its Affiliates (including in the case of Seller the Parent Group) prior to any existing solicitation by such Party or former customer its Affiliates (including in the case of Seller the Sellers or the Subsidiaries and any Person that becomes a client or customer Parent Group) in violation of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipthis Section 7.09(b). (c) The Parties acknowledge and agree that the covenants and undertakings provisions in this Section 7.09 are reasonable in duration, geographic area and scope, and are separate and divisible. It is the intention of the Parties that if any of the restrictions or covenants contained in this Section 7.10 relate 7.09 is held to matters be for a length of time, geographical area or scope which are of a special, unique and extraordinary character and a violation of is not permitted by applicable Law or in any of the terms of this Section 7.10 will cause irreparable injury way construed to the Buyer be too broad or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10extent invalid, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant such provision shall not be considered construed to be null, void and of no effect, but to the extent such provision would be valid or enforceable under applicable Law, the courts of the State of Delaware shall construe and interpret or reform Section 7.09(a) or Section 7.09(b), as applicable, to provide for a measure of or limit on such damages. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser covenant having the maximum enforceable time period, geographical area, business limitation scope and other provisions, in each case not greater than those contained in Section 7.09(a) or Section 7.09(b), as shall be valid and enforceable under such applicable Law. (d) Seller acknowledges that (i) the goodwill associated with the existing business, customers and assets of the Plastics Business prior to the Closing is an integral component of the value of the Plastics Business and Plastics Assets to Buyer and the Transferred Entities and is reflected in the consideration payable to Seller in connection with the Transactions, and (ii) Seller’s agreement as set forth herein is necessary to preserve the value of the Plastics Business and the Plastics Assets for Buyer following the Closing. Seller also acknowledges that the limitations of time and scope of activity agreed to in Section 7.09(a) are reasonable because, among other relevant feature which things: (A) Buyer and Seller are engaged in a highly competitive industry; (B) Seller has had unique access to the trade secrets and know-how of the Plastics Business and the Transferred Entities, with respect to the Plastics Assets and Assumed Liabilities, including the plans and strategy (and, in particular, the competitive strategy) of the Plastics Business and the Transferred Entities, with respect to the Plastics Assets and Assumed Liabilities; and (C) Seller believes that this Agreement provides no more protection than is determined by such court reasonably necessary to be reasonableprotect Buyer’s legitimate interest in the goodwill, not arbitrary trade secrets, properties and not against public policy may be enforced against assets and information of the applicable partyPlastics Business, Plastics Assets and Assumed Liabilities.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Univar Inc.)

Non-Competition; Non-Solicitation. (a) For a During the period from commencing on the date hereof until Closing Date and ending 24 months after the later of the fifth anniversary of the Initial Closing Date (the "Restricted Period"), ST and the Sellers shall Seller will not, and shall will cause their Affiliates its Subsidiaries not to, directly or indirectly, (i) ownparticipate or engage in, manageor hold any ownership interest in any Person who engages in, operate, control or participate in the ownership, management, operation or control provision of any business, whether in corporate, proprietorship or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, in either case service that is the same or substantially similar to or competitive with the Business or any Business Products in any geographic area where the Business offers or sells or offered or sold products or services (x“Competing Activity”). Promptly (but in any event within five Business Days) following the Closing, Seller shall send a notice to employees of Seller and its Subsidiaries engaged in productiona sales function directing such employees not to, sale during the Restricted Period, knowingly induce or distribution knowingly attempt to induce any client, supplier or other business relation of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including to cease doing business with the Buyer or its Subsidiaries, or in any way take actions with the intention of materially interfering with the relationship between any such client, supplier or other business relation, in each case, with respect to the Business. (b) Notwithstanding anything to the contrary in the foregoing clause (a), Seller and its Subsidiaries may in all events: (i) engage in any business actually conducted by Seller or about its Subsidiaries on the Agreement Date other than the Business and continue to sell its products and services as of the Agreement Date other than Business Products, and any new releases, updates and successors to such products and services, in each case, that are not competitive with the Business or the Business Products; (ii) continue to perform any Competing Activity for the benefit of Buyer or any of its Affiliates as expressly required by this Agreement or any other Transaction Document; (iii) acquire any Person, or one or more divisions or lines of business of a Person, that engages in a Competing Activity by merger or a purchase of shares or assets of a Person so long as, immediately prior to the time of such acquisition, the Competing Activity does not account for more than 20% of the aggregate annual gross revenues of such Person, or divisions or lines of business of such Person, to be conducted during so acquired for its most recent fiscal year preceding the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around businessacquisition; provided, however, that in the restrictions contained event of such acquisition where the aggregate annual gross revenue related to the Competing Activity exceeds 20% of the aggregate annual gross revenue of the Person or divisions or lines of business of such Person, Seller shall be permitted to acquire such Person or business so long as it divests the portion of the Person or business that engages in this Section 7.10(a) the Competing Activity within 12 months of the acquisition thereof; provided that such 12-month period shall not restrict be extended to the date on which all approvals from a Governmental Authority required to complete the divestiture are received (to no later than the third anniversary following the acquisition of such Person or divisions or lines of business of such Person) if such approvals are not received by the end of such 12-month period; (iv) own and operate any Person, division or line of business acquired in compliance with clause (iii) above; provided that, any such division or line of business cannot and does not account for more than 10% of the aggregate annual gross revenues of Seller and its Subsidiaries during the Restricted Period; and (v) directly or indirectly hold interests in or securities of any Person engaged in a passive Competing Activity to the extent that such investment by ST and the Sellersdoes not, directly or indirectly, in the aggregate confer on any of less than 5Seller or its Affiliates 10% or more of the outstanding capital stock voting power of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of economic entitlement to such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipPerson. (c) The covenants During the period commencing on the Closing Date and undertakings contained ending 24 months after the Closing Date, Seller will not, and will cause its Subsidiaries not to, directly or indirectly, hire or solicit to hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) (i) any Continuing Employee or (ii) members of the senior leadership team of Buyer. This restriction shall not apply to Persons that have been terminated by Buyer or its Subsidiaries at least six months prior to any solicitation or the commencement of employment discussions between Seller or its Subsidiaries or its or their representatives and such Person and nothing in this Section 7.10 relate to matters which clause (c) shall restrict Seller or its Subsidiaries from engaging in general or public searches, solicitations or advertising by or on behalf of Seller or such Subsidiary (including through search firms) that are of a special, unique and extraordinary character and a violation of not specifically directed towards any of such Person described in the terms first sentence of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damagesclause (c). (d) During the period commencing on the Closing Date and ending 24 months after the Closing Date, Buyer will not, and will cause its Subsidiaries not to, directly or indirectly, solicit to hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) (i) any employee of Seller or its Subsidiaries (other than any Business Employee) who has a title of Vice President or above or (ii) any other employee of Seller or its Subsidiaries who is engaged in whole or in part in providing services to Buyer pursuant to the TSA. This restriction shall not apply to Persons who have been terminated by Seller or its Subsidiaries at least six months prior to commencement of employment discussions between Buyer or its Subsidiaries or its or their representatives and such Person and nothing in this clause (d) shall restrict Buyer or its Subsidiaries from engaging in general or public searches, solicitations or advertising by or on behalf of Buyer or such Subsidiary (including through search firms) that is not specifically directed towards any such Person described in the first sentence of this clause (d). (e) Each Party acknowledges and agrees that the covenants and agreements set forth in this Section 6.10 were a material inducement to the other Party to enter into this Agreement and to perform its obligations hereunder. Seller hereby acknowledges that the restrictive covenants set forth in Section 6.10(a) are reasonable in terms of duration, scope and area restrictions and are limited to the scope that is necessary to protect the goodwill of the Business and to prevent the impairment of the value of the substantial investment therein being made by Buyer hereunder. The parties hereto Parties agree that, if any court of competent jurisdiction in a final nonappealable final, non-appealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 6.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable partyParty. It is agreed that any breach or threatened breach of the restrictive covenants set forth in this Section 6.10 would cause irreparable injury to the non-breaching Party and that money damages would not provide an adequate remedy to the non-breaching Party. (f) Subject in all cases to applicable Law, Buyer and Seller expressly acknowledge and agree that in the event of any violation of the provisions of this Section 6.10 by Buyer, Seller or their respective Affiliates or Representatives, the restrictions contained in this Section 6.10 shall be extended by a period of time equal to the period of such violation, it being the intention of the parties hereto that the running of the restriction period shall be tolled during any period of such violation.

Appears in 1 contract

Samples: Purchase Agreement (KORE Group Holdings, Inc.)

Non-Competition; Non-Solicitation. (a) For During the period beginning on the Closing Date and ending two (2) years following the Closing (the “Restricted Period”), neither Seller nor AHG, nor any of their respective Subsidiaries (excluding, for the avoidance of doubt, the Company and the Company Subsidiaries), shall directly or indirectly, without the prior written consent of Buyer, engage in, or manage, operate, Control, make an investment in or own an equity interest in, any entity that is engaged in, a period from Competing Business; provided that this Section 6.13(a) shall not prohibit (i) the date hereof until acquisition of an equity interest up to (but not more than) 5% in any publicly-traded Person whose equity interests are listed on a nationally or internationally recognized securities exchange; (ii) the later acquisition of any entity or enterprise engaged in a Competing Business, so long as Seller (or AHG or any other relevant Subsidiary) shall not materially expand such Competing Business during the Restricted Period and so long as Seller (or AHG or any other relevant Subsidiary) gives Buyer an option to purchase the Competing Business at fair market value within six (6) months following the acquisition; (iii) Seller’s or its Subsidiaries’ activities under the Ancillary Agreements or any other Contracts with the Company or any of the fifth anniversary Company Subsidiaries, or (iv) engagement in a Competing Business if (1) Seller (or AHG or any other relevant Subsidiary) or substantially all of its (or AHG’s or any other relevant Subsidiary’s) assets is acquired by an unrelated company or enterprise already involved in a Competing Business that does not derive more than fifteen percent (15%) of its total revenues from such Competing Business, and (2) the Initial purchaser consolidates Seller’s (or AHG’s or any other relevant Subsidiary’s) operations with its own (including the Competing Business). For the avoidance of doubt, in the event that Seller (or AHG or any other relevant Subsidiary) is acquired by a purchaser that either is not engaged in a Competing Business, or which derives more than fifteen percent (15%) of its net revenues from a Competing Business, then the restrictions of this Section 6.13(a) shall continue to apply to Seller, AHG and their respective Subsidiaries, though not to the acquiring company or its other Affiliates. (b) During the period beginning on the Closing Date and ending one (1) year following the "Restricted Period")Closing, ST (A) neither Seller nor AHG shall (and shall each ensure that none of its Subsidiaries (excluding, for the avoidance of doubt, the Company and the Sellers shall not, and shall cause their Affiliates not toCompany Subsidiaries) shall), directly or indirectly, (i) owninduce, manageencourage, operatepersuade or solicit any employee of the Company or any Company Subsidiary to terminate his or her employment with the Company or any Company Subsidiary or accept any other position or employment with Seller, control AHG or participate any of their respective Subsidiaries, and (ii) hire or assist any other Person in the ownershiphiring, managementas an officer, operation or control of any businessemployee, whether in corporateconsultant, proprietorship or partnership form independent contractor or otherwise, any employee of the Company or (ii) provide consultative or advice services any Company Subsidiary who has left such employment, except pursuant to a general solicitation which is not directed specifically to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around businesssuch employee; provided, however, that nothing in this Section 6.13(b) shall prevent Seller, AHG or any of their respective Subsidiaries from hiring any employee whose employment was terminated by the Company or any Company Subsidiary or the employee after 180 days from the date of termination, and (B) Buyer and its Affiliates shall not, and shall ensure that none of their respective Subsidiaries (including, for the avoidance of doubt, the Company and the Company Subsidiaries) shall, directly or indirectly, (i) induce, encourage, persuade or solicit any employee of the Seller or any of Seller Subsidiary (the “Covered Employees”), to terminate his or her employment with the Seller or any of Seller’s Subsidiaries or accept any other position or employment with Buyer or any of its Subsidiaries, and (ii) hire or assist any other Person in hiring, as an officer, employee, consultant, independent contractor or otherwise, any Covered Employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employee; provided, however, that nothing in this Section 6.13(b) shall prevent Buyer, its Affiliates, or any of their respective Subsidiaries from hiring any Covered Employee whose employment was terminated by Seller or any of Seller’s Subsidiaries or the Covered Employee after 180 days from the date of termination. (c) The parties acknowledge that the restrictions contained in this Section 7.10(a) shall not restrict 6.13 are reasonable and necessary to protect the acquisition legitimate interests of each party and constitute a passive investment by ST and the Sellers, directly or indirectly, in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) material inducement to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of each party to enter into this Agreement shall be complied with. (b) For and consummate the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided transactions contemplated by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equityAgreement. In the event that the Buyer or DR Partnership were to seek damages for any breach of covenant contained in this Section 7.106.13 should ever be adjudicated to exceed the time, the portion of the Purchase Price which geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is allocated by the parties expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the foregoing maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 6.13 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not be considered a measure of invalidate or limit on render unenforceable the remaining covenants or provisions hereof, and any such damages. (d) The parties hereto agree that, if invalidity or unenforceability in any court of competent jurisdiction shall not invalidate or render unenforceable such covenant or provision in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable partyjurisdiction.

Appears in 1 contract

Samples: Stock Purchase Agreement (CVS Caremark Corp)

Non-Competition; Non-Solicitation. (a) For the term of the Buyer License Agreement, but in no event for a period from less than [***] following the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "Restricted “Non-Compete Period"), ST and the Sellers shall Seller will not, and shall will cause their its Affiliates not to, directly or indirectlyindirectly through any Person or contractual arrangement, other than the activities explicitly permitted pursuant to the Buyer License Agreement or other services requested by and provided directly to the Buyer: (i) ownwhether on its own behalf or on behalf of or for the benefit of a third party (subject to Section 5.4(b) below) (A) engage in any activities related to the [***] (1) [***] (2) technology that enables an environment where [***], manageor (3) any [***] or (B) [***] technology described in (1), operate(2) or (3) above, control or participate any component thereof into the [***] (each of 5.4(a)(i)(A) and (B), a “Competing Business”); (ii) have a financial interest in any Competing Business, except as expressly permitted in Section 5.4(d) below; (iii) solicit, recruit or hire (or with regards to Offered Employees, retain) any person who is a Seller Prohibited Employee (as defined below); provided, that the ownershipforegoing shall not prohibit (A) a general solicitation to the public of general advertising or similar methods of solicitation by search firms not specifically directed at Seller Prohibited Employees or (B) the Seller or any of its Affiliates from soliciting, managementrecruiting or hiring any Seller Prohibited Employee who has ceased to be employed or retained by the Seller, operation the Buyer or control any of their respective Affiliates for at least 12 months; provided further that as the restrictions in this Section 5.4(a)(iii) relates to the retention of Offered Employees, the Buyer may waive, in writing, such restrictions at any businesstime. (iv) approach or seek Competing Business from any Customer (as hereinafter defined), whether refer Competing Business from any Customer to any Person or be paid commissions based on Competing Business sales received from any Customer by any Person. For purposes of this Section 5.4, the term “Customer” means any Person to which the Seller, the Buyer or any of their respective Affiliates provided products or services during the twelve-month period prior to the time at which any determination shall be made that any such Person is a Customer; provided, that the foregoing shall not prohibit any referral of business by the Seller to the Buyer; or (v) disparage the Buyer or any of its Affiliates in corporateany way that could adversely affect the goodwill, proprietorship reputation or partnership form business relationships of the Business, the Buyer or otherwiseany of its Affiliates with the public generally, or with any of their customers, suppliers or employees. (b) Notwithstanding anything to the contrary in Section 5.4(a)(i), during the Non-Compete Period, solely in connection with a [***], Seller may: (i) (A) optimize [***] (as defined below), and (B) [***]; and (ii) [***] following the Closing Date, [***]. For the avoidance of doubt, the activities in Section 5.4(b)(i) and (ii) are for the sole benefit of the [***] to 5.4(b)(i) and (ii), and except in connection with 5.4(b)(i) and (ii), [***]. (c) If during the Non-Compete Period there is a [***] and as a result [***], Seller may request a [***]. (d) Nothing contained herein shall limit Seller (i) from acquiring (including through a merger) or investing in any Person whose business activities do not constitute a Competing Business in substantial part; or (ii) provide consultative or advice services to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in this Section 7.10(a) shall not restrict the acquisition of a passive investment by ST and the Sellersfrom, directly or indirectly, holding or making investments in securities of any business listed on a national securities exchange, admitted to trading in an automated quotations market, or traded generally on the aggregate of less than 5over-the-counter market, so long as Seller’s direct or indirect holdings do not exceed 10% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the equity securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied withthereof. (be) For the Restricted Periodpurposes of this Section 5.4, the Sellers and ST following definitions shall not and shall cause their Affiliates not to: apply: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or [***] means technology that is [***]. (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship[***] means Seller’s [***]. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damages. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Asset Purchase Agreement (Phoenix Technologies LTD)

Non-Competition; Non-Solicitation. (a) For Each of the Parent and Holdings and each of their respective Affiliates (the “Restricted Persons”) hereby acknowledges that such Restricted Person is familiar with the Company’s proprietary business model, trade secrets and with other confidential information of the Company and Holdings. Each Restricted Person acknowledges and agrees that Purchaser would be irreparably damaged if such Restricted Person were to compete with Purchaser or provide products or services to any Person competing with Purchaser or engaged in a similar business and 33 that such competition by such Restricted Person would result in a significant loss of goodwill by Purchaser. Each Restricted Person further acknowledges and agrees that the covenants and agreements set forth in this Section 6.08 were a material inducement to Purchaser to enter into this Agreement and to perform its obligations hereunder, and that Purchaser would not obtain the benefit of the bargain set forth in this Agreement as specifically negotiated by the parties hereto if any of the Restricted Persons breached the provisions of this Section 6.08. Therefore, in further consideration of the amounts to be paid to Parent hereunder for the Shares, each of the Restricted Persons agrees that for a period from of five (5) years following the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "Restricted Period"), ST and the Sellers such party shall not, and shall cause their not permit any of its Affiliates not to, directly or indirectly, either for itself or through any other Person, engage in or participate in, any enterprise engaging in or participating in, the business of providing services or products similar to those of the Company anywhere in the world. For purposes of this Agreement, the term “participate” includes any direct or indirect interest in any enterprise, whether as a shareholder, partner, joint venturer, franchisor, franchisee or otherwise (other than by ownership of less than five percent (5%) of the stock of a publicly held corporation) or rendering any direct or indirect service or assistance to any Person. Each of the Restricted Persons agrees that this covenant is reasonably designed to protect Purchaser’s substantial investment and is reasonable with respect to its duration, geographical area and scope. (b) Each of the Restricted Persons agrees not to disclose or use at any time (and shall cause each of its Affiliates not to use or disclose at any time) any confidential information or trade secrets of the Company or Holdings. Each of the Restricted Persons further agrees to take all appropriate steps (and to cause each of its Affiliates to take all appropriate steps) to safeguard such confidential information and to protect it against disclosure, misuse, espionage, loss and theft. In the event any Restricted Person is required by Law to disclose any confidential information or trade secrets of the Company or Holdings, such Restricted Person shall promptly notify Purchaser in writing, which notification shall include the nature of the legal requirement and the extent of the required disclosure, and shall cooperate with Purchaser to preserve the confidentiality of such information consistent with applicable Law. (c) For so long as a Restricted Person has continuing obligations under Section 6.08(a) above, neither such Restricted Person nor any of its Affiliates shall directly, or indirectly through another Person, (i) own, manage, operate, control induce or participate in the ownership, management, operation or control of attempt to induce any business, whether in corporate, proprietorship or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in this Section 7.10(a) shall not restrict the acquisition of a passive investment by ST and the Sellers, directly or indirectly, in the aggregate of less than 5% employee of the outstanding capital stock of any company, whether publicly traded Company or privately held, engaged in a Restricted Business or, Holdings to leave the ownership employ of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed byHoldings, or in any way involved interfere with the Restricted Business relationship between the Company or Holdings and does not provideany employee thereof, whether directly (ii) hire any person who was an employee of the Company or indirectlyHoldings at any time during the six (6) month period immediately prior to the date on which such hiring would take place (it being conclusively presumed by the parties so as to avoid any disputes under this Section 6.08(c) that any such hiring within such six (6) month period is in violation of clause (i) above) or (iii) call on, solicit or service any service customer, supplier, independent contractor or other business relation of the Company or Holdings in order to induce or attempt to induce such Person to cease doing business with the Company or Holdings, or in any way interfere with the relationship between any such customer, supplier, independent contractor or business relation and the Company (whether as consultantincluding making any negative statements or communications about the Company, advisor Holdings, the Purchaser, or otherwisethe goods or services sold by the Company). 34 (d) to If, at the time of enforcement of the covenants contained in this Section 6.08 (the “Restrictive Covenants”), a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the benefit stated duration, scope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by Law. Each of the Restricted Business or Persons has consulted with legal counsel regarding the entity Restrictive Covenants and based on such consultation has determined and hereby acknowledges that the Restrictive Covenants are reasonable in connection with such Restricted Business; terms of duration, scope and further provided area restrictions and are necessary to protect the confidentiality provisions goodwill of this Agreement shall be complied withthe Company and Holdings and the substantial investment in the Shares by Purchaser hereunder. (be) For If any Restricted Person breaches, or threatens to commit a breach of, any of the Restricted PeriodRestrictive Covenants, Purchaser shall have the Sellers following rights and ST remedies, each of which rights and remedies shall be independent of the others and severally enforceable, and each of which is in addition to, and not in lieu of, any other rights and shall cause their Affiliates not toremedies available to Purchaser at law or in equity: (i) causethe right and remedy to have the Restrictive Covenants specifically enforced by any court of competent jurisdiction, solicit, induce it being agreed that any breach or encourage any Employees threatened breach of the Buyer or DR Partnership Restrictive Covenants would cause irreparable injury to leave such employment or hire, employ or otherwise engage Purchaser and that money damages would not provide an adequate remedy to Purchaser (without any such individualrequirement to post bond); or and (ii) causethe right and remedy to require the Restricted Persons to account for and pay over to Purchaser any profits, induce monies, accruals or encourage increments derived or received by the Restricted Persons as the result of any material actual or prospective client, customer, supplier or licensor transactions constituting a breach of the Business (including Restrictive Covenants. In the event of any existing breach or former customer violation by any of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation Restricted Persons of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR PartnershipRestrictive Covenants, the amount time period of which will such covenant with respect to such Person shall be impossible to estimate tolled until such breach or determine violation is resolved. The parties acknowledge that the foregoing remedies shall be the sole and which cannot be adequately compensated. Accordingly, exclusive remedies of the remedy at law for parties in connection with any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damages6.08. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Stock Purchase Agreement (Blucora, Inc.)

Non-Competition; Non-Solicitation. (ai) For a period of three years from and after the date hereof until the later of the fifth anniversary of the Initial Closing Date (or, solely in the "Restricted Period"case of the active pharmaceutical ingredients bacitracin and bacitracin zinc, five years), ST and the Sellers shall not, and shall cause neither Parent nor any of its Subsidiaries or Affiliates (in their Affiliates not tocapacity as such) will, directly or indirectly, manufacture or sell the active pharmaceutical ingredients set forth on Section 6(e)(i) of the Disclosure Schedule primarily for incorporation into finished dose human pharmaceutical products (i) own, manage, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"“API Competitive Activities”), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in it shall not be a violation of this Section 7.10(a6(e)(i) shall not restrict the acquisition for Parent or any of its Affiliates or Subsidiaries to (A) own or acquire any equity securities (or securities convertible into Table of Contents equity securities) of any Person which invests in, manages or operates a passive investment by ST and the Sellers, directly or indirectlybusiness that engages in API Competitive Activities, in the aggregate of each case, provided that such equity securities (or securities convertible into equity securities) represent less than 5% of the outstanding capital stock of such Person, (B) own or acquire all or a majority of the stock or assets of any companyPerson that derives 10% or less of its annual consolidated revenues from API Competitive Activities, whether publicly traded (C) develop, manufacture or privately heldsell active pharmaceutical ingredients primarily intended for incorporation into finished dose non-human pharmaceutical products, engaged (D) operate Parent’s animal health division or any other business consisting of the research, development, manufacture, distribution or sale of animal health products or (E) consummate any of the transactions contemplated by this Agreement, any Ancillary Agreement and any Intercompany Assumed Agreement and comply with the terms of this Agreement, each Ancillary Agreement and each Intercompany Assumed Agreement. Subject to Section 11(d), nothing in this Section 6(e)(i) shall prevent any sale of all or substantially all of the assets or the business of Parent’s animal health division by Parent and its Affiliates to any Person; provided such purchaser shall be subject to the provisions of this Section 6(e)(i). (ii) For a Restricted Business period of three years from and after the Closing Date (or, solely in the ownership case of the securities active pharmaceutical ingredients bacitracin and bacitracin zinc, five years), neither Buyer nor any of Restricted Businesses its Subsidiaries or Affiliates (in their capacity as such) will, directly or indirectly, manufacture or sell active pharmaceutical ingredients that are set forth in on Section 6(e)(ii) of the Disclosure Schedule 7.10 primarily intended for incorporation into the finished dose animal pharmaceutical products (which amount of securities the “AH Competitive Activities”); provided, however, that it shall not be increased without BEI's consent; a violation of this Section 6(e)(ii) for Buyer or any of its Affiliates to (A) own or acquire any equity securities (or securities convertible into equity securities) of any Person which invests in, manages or operates a business that engages in AH Competitive Activities, in each case, provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest such equity securities (which interest represents no more or securities convertible into equity securities) represent less than 5% of the outstanding capital stock of such entity's consolidated income Person, (B) own or consolidated assets) in acquire all or a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit majority of the Restricted Business stock or the entity in connection with such Restricted Business; and further provided the confidentiality provisions assets of this Agreement shall be complied with. (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client derives 10% or customer less of its annual consolidated revenues from AH Competitive Activities, (C) develop, manufacture or sell active pharmaceutical ingredients primarily intended for incorporation into finished dose human pharmaceutical products, (D) operate the Business in the manner it is conducted as of the Business after the Initial Closingdate of this Agreement, (E) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of consummate any of the transactions contemplated by this Agreement, any Ancillary Agreement and any Intercompany Assumed Agreement and comply with the terms of this Agreement, each Ancillary Agreement and each Intercompany Assumed Agreement or (F) manufacture or sell any of the Products listed on Section 7.10 will cause irreparable injury 6(e)(ii)(F) of the Disclosure Schedule in human grade (the “Exception Products”); provided that none of Buyer nor its Subsidiaries or Affiliates may knowingly manufacture the Exception Products for or sell the Exception Products to customers who intend to incorporate the Exception Products into finished dose non-human pharmaceutical products, except for annual sales of the Exception Products in any fiscal year in an aggregate amount no greater than an amount equal to 105% of the average of the aggregate yearly sales of the Exception Products by the Business for the 2006 and 2007 fiscal years (the “Exception Product Sales Cap”); provided however that for the fiscal year commencing on January 1, 2009 the Exception Product Sales Cap shall increase by 5%, and shall increase by an Table of Contents additional 5% for each fiscal year thereafter. Prior to the Closing Date, Parent shall deliver to Buyer a list of the customers who incorporated the Exception Products into finished dose non-human pharmaceutical products, together with a statement setting out total sales by the Business in each of 2006 and 2007 of the Exception Products that were used in connection with finished dose non-human pharmaceutical products. Subject to Section 11(d), nothing in this Section 6(e)(ii) shall prevent any sale of all or DR Partnership, substantially all of the amount assets or the business of which will the Business by the Buyer Entities to any Person; provided such purchaser shall be impossible subject to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach provisions of this Section 7.10 will 6(e)(ii). (iii) For a period of twelve (12) months following the Closing Date, none of Parent nor any of its Subsidiaries shall induce, solicit or encourage any Person who is at such time a Transferred Employee to leave or curtail his or her employment with the Buyer Entities; provided, however, that it shall not be inadequate. Thereforea violation of this Section 6(e)(iii) for Parent or any of its Subsidiaries to engage in general advertising or employee search activities targeted to a broad pool of potential applicants for a position (and not specifically targeting employees of the Buyer Entities). (iv) Except as otherwise specifically required by this Agreement, from the date of this Agreement until twelve (12) months following the Closing Date, the Buyer Entities shall not induce, solicit or DR Partnership will encourage any Person who is an employee of Parent or its Affiliates, other than the Transferred Employees, to leave or curtail his or her employment with Parent or its Affiliates; provided, however, that it shall not be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach a violation of this Section 7.10 without the necessity 6(e)(iv) for any of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer Entities to engage in general advertising or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were employee search activities targeted to seek damages a broad pool of potential applicants for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damages. position (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable partyspecifically targeting employees of Parent or its Subsidiaries).

Appears in 1 contract

Samples: Stock and Asset Purchase Agreement (Alpharma Inc)

Non-Competition; Non-Solicitation. (a) For a period from During the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "Restricted Period"), ST and the Sellers Seller shall not, and shall cause their not permit any of its Affiliates not to, directly or indirectlyindirectly (it being understood that commercial transactions with a client, (i) owncustomer, managesupplier, operate, control licensor or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, in either case distributor that is (x) engaged in production, sale or distribution not an Affiliate of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in this Section 7.10(a) shall not restrict the acquisition of a passive investment by ST and the Sellers, directly or indirectly, in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities Seller shall not be increased without BEI's consent; provided further, however, ST deemed to be indirectly violating the provisions of this Section 6.08 by reason of the fact that such person may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) engaging in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with.taking any other action prohibited hereunder): (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of engage in the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or Restricted Business in the Territory; (ii) have an interest in any Person that engages directly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, 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 customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) ), or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshiprelationship in a manner that is adverse to the Business. (b) The restrictions in Section 6.08(a) shall not apply to: (i) The Specified Excluded Businesses, or any business conducted or investment held by Seller or its Affiliates (other than the Business), or contemplated by an existing contractual arrangement applicable to Seller or any of its Affiliates (other than the Business) as of the date of this Agreement and disclosed on Schedule 6.08(b), which Schedule will be provided within 15 Business Days after the date hereof and which, to the Knowledge of Seller as of the date hereof, would not reasonably be expected to disclose businesses, investments or arrangements that would be significant in light of the intended purpose of this Section 6.08; (ii) any equity investment (including equity derivatives) in a Person in which Seller and its Affiliates (A) do not have the right to designate greater than 20% of the board of directors (or similar governing body) of such Person, (B) hold less than 25% of the total voting power of the outstanding voting securities or similar equity interests, (C) do not manage or operate the business of such Person or make significant proprietary assets available to such Person for use in such Person’s business other than on arm’s length commercial terms and (D) are not entitled to ordinary dividend income or other distributions that are greater than the product of (x) 1.5 and (y) what a Person who is the holder of ordinary voting securities or similar equity interests with a total voting power equal to the total voting power of the outstanding voting securities or similar equity interests held by Seller and its Affiliates would receive; (iii) any business activity that would otherwise violate Section 6.08(a) that is acquired in connection with an Acquisition so long as (A) the net sales derived from the conduct of the Restricted Business constitute less than 20% of the net sales of the Acquired Business and such annual net sales derived from the conduct of the Restricted Business are less than $80 million; or (B) Seller or its Affiliates, as applicable, divests all or substantially all of the business activity that would otherwise violate Section 6.08(a) or otherwise terminates or disposes of such business activity, product lines or assets of such Acquired Business that would otherwise violate Section 6.08(a) within one year after the consummation of the acquisition of such Acquisition or such longer period as may reasonably be necessary to comply with any applicable Laws; provided, however, that Seller or any of its Affiliates may not under any circumstances acquire an Acquired Business with respect to which the portion of the business activity that is prohibited by Section 6.08(a) (x) constitutes 30% or more of the total annual net sales of such Acquired Business unless the total annual net sales of the Acquired Business are less than $100 million, or (y) generates annual net sales in excess of $120 million; (iv) passive investments by a pension or employee benefit plan or trust for present or former employees so long as such investments are directed by independent trustees, administrators or employees or by virtue of any other similar plan, fund or investment vehicle over which Seller and its Affiliates exercise no investment discretion (other than the right to buy or sell its interest in such plan, fund or investment vehicle) and financial investments by the Novartis Venture Funds; (v) investments by the Novartis Foundation for Sustainable Development or a similar non-profit-based organization; (vi) performance of any obligation of Seller or an Affiliate of Seller under the Transaction Documents, as amended from time to time in accordance with its their terms; or (vii) provision of data or other content to or in connection with a Restricted Business conducted by any Person other than Seller or an Affiliate of Seller, in each case as required by applicable Law. (c) The covenants Section 6.08(a) shall (x) cease to be applicable to any Person at such time as it is no longer an Affiliate of Seller and undertakings shall not apply to any Person that purchases assets, operations, a subsidiary or a business from Seller or one of its Affiliates, if such Person is not an Affiliate of Seller after such transaction is consummated, and (y) be inapplicable to any Affiliate of Seller in which a Person who is not an Affiliate of Seller holds equity interests and with respect to whom Seller or another Affiliate, as applicable, has existing contractual or legal obligations limiting Seller’s discretion to impose on the subject Affiliate a non-competition obligation such as that in Section 6.08(a) and to be set forth on Schedule 6.08(c) (which Schedule will be provided within 15 days after the date hereof and which, to the Knowledge of Seller as of the date hereof, would not reasonably be expected to contain equity interests that would be significant in light of the intended purposes of this Section 6.08). (d) During the Restricted Period, Seller shall not, and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any person who is offered employment by Buyer or its Affiliates pursuant to Section 6.05 and is or was a Senior Employee during the Restricted Period or whose total annual compensation is in excess of $150,000, 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 that is not directed specifically to any such employee; provided that nothing in this Section 6.08(d) shall prevent Seller or any of its Affiliates from (i) hiring or soliciting any employee whose employment with Buyer or any of its Affiliates was terminated by Buyer or (ii) hiring or soliciting any employee whose employment with Buyer or any of its Affiliates has been terminated by the employee, after 180 days from the date of termination of such employment. (e) Seller acknowledges that a breach or threatened breach of this Section 6.08 would give rise to irreparable harm to Buyer or its Affiliates, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Seller of any of its obligations, Buyer or its Affiliates may, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to seek equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). (f) Seller acknowledges that the restrictions contained in this Section 7.10 relate 6.08 are reasonable and necessary to matters which are protect the legitimate interests of Buyer and its Affiliates and constitute a special, unique material inducement to Buyer to enter into this Agreement and extraordinary character the other Transaction Documents and a violation of any of consummate the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided transactions contemplated by this Section 7.10 are cumulative Agreement and in addition to any the other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equityTransaction Documents. In the event that the Buyer or DR Partnership were to seek damages for any breach of covenant contained in this Section 7.106.08 should ever be adjudicated to exceed the time, the portion of the Purchase Price which geographic, product or service or other limitations permitted by applicable Law in any jurisdiction, then any court is allocated by the parties expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the foregoing maximum time, geographic, product or service or other limitations permitted by applicable Law. The covenants contained in this Section 6.08 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 be considered a measure of invalidate or limit on render unenforceable the remaining covenants or provisions hereof, and any such damages. (d) The parties hereto agree that, if invalidity or unenforceability in any court of competent jurisdiction shall not invalidate or render unenforceable such covenant or provision in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable partyjurisdiction.

Appears in 1 contract

Samples: Share and Asset Purchase Agreement (Grifols SA)

Non-Competition; Non-Solicitation. (a) For a period from the date hereof until the later Each of the fifth anniversary of the Initial Closing Date (the "Restricted Period")Parent and Seller hereby undertakes not to, ST and the Sellers shall procure that its Affiliates shall not, and shall cause their Affiliates not toin any country in which the Business is conducted as at the Closing Date, directly or indirectly, (i) own, manage, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in this Section 7.10(a) shall not restrict the acquisition of a passive investment by ST and the Sellersengage, directly or indirectly, in any capacity, in any business which competes with the aggregate Business as carried out as at the Closing Date, for a period of less three (3) years following the Closing Date. For the avoidance of doubt, nothing in this Section 8.6(a) will restrict any Person (other than 5% Parent and its Subsidiary Undertakings) or its Affiliates acquiring (through share purchase or in a merger or other consolidation) Parent or all or substantially all of the outstanding capital stock assets of Parent, from engaging (other than through Parent and its Subsidiary Undertakings) in any companyactivities which compete with the Business unless such Person or any of its Affiliates is engaged in any activities which compete, directly or indirectly, with the formic acid business operations of the Business; provided that, nothing in this Section 8.6(a) will restrict BASF or Perstorp or their respective Affiliates acquiring (through share purchase or in a merger or other consolidation) Parent or all or substantially all of the assets of Parent. (b) Each of Parent and Seller shall not (and shall procure that its Affiliates shall not), whether publicly traded alone or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved jointly with the Restricted Business another Person and does not provide, whether directly or indirectly, any service for three (whether as consultant3) years after the Closing Date, advisor or otherwise) solicit, seek to or for entice away from the benefit of the Restricted Business or the entity Target Group or hire any Person who is employed by the Business or the Target Group in connection with such Restricted Business; and further provided skilled or managerial work as at the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted PeriodClosing Date. Nothing stated above restricts Parent, the Sellers and ST shall not and shall cause Seller or their respective Affiliates not to: from (i) causeplacing, solicit, induce or encourage any Employees of the Buyer or DR Partnership entering into discussions with a Person who replies to leave such employment or hire, employ or otherwise engage any such individual; a bona fide general recruitment advertisement which is not specifically targeted at those Persons or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and hiring any Person that becomes a client or customer of whose employment has been terminated by the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipTarget Group at least six months earlier. (c) The covenants Each of Parent and undertakings contained in Seller acknowledges (on behalf of itself and its Affiliates) that the time, scope and other provisions of this Section 7.10 relate 8.6 and Section 8.7 have been specifically negotiated by sophisticated commercial parties and specifically hereby agree that such time, scope and other provisions are reasonable under the circumstances and are necessary to matters which are of a special, unique and extraordinary character and induce Purchaser to enter into this Agreement. It is further agreed that other remedies cannot fully compensate Purchaser for a violation of any by Parent, Seller or their respective Representatives of the terms of this Section 7.10 will cause irreparable injury 8.6 and Section 8.7 and that Purchaser, in addition to the Buyer or DR Partnershipremedies available at Law, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will shall be entitled to an injunctionequitable remedies (including injunctive relief and specific performance) to prevent any such violation or threatened violation or continuing violation by Parent or Seller (or any of their respective Representatives). It is the intent and understanding of each Party that if, restraining order in any proceeding, any term, restriction, covenant, undertaking or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages promise herein is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant, undertaking or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties promise shall be deemed modified to the foregoing covenant shall not be considered a measure of or limit on such damagesextent necessary to make it enforceable. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Share Purchase Agreement (TAMINCO Corp)

Non-Competition; Non-Solicitation. (a) For a period from The Participant and the date hereof until Employer agree to the later non-competition and non-solicitation provisions of this Exhibit A in consideration for the Confidential Information provided by the Company Group and its Affiliates to the Participant pursuant to the Participant’s employment with the Employer, to further protect the Trade Secrets and Confidential Information disclosed or entrusted to the Participant or created or developed by the Participant for the Company Group or its Affiliates, to protect the business goodwill of the fifth anniversary Company Group and its Affiliates developed through the efforts of the Initial Closing Date (the "Restricted Period"), ST Participant and the Sellers shall notbusiness opportunities disclosed or entrusted to the Participant and the other legitimate business interests of the Company Group and its Affiliates, and shall cause their Affiliates not toas an express incentive for the Employer to enter into the Agreement. 1. Subject to the exceptions set forth in Section 4(b) below, the Participant expressly covenants and agrees that during the Noncompetition Prohibited Period, the Participant will refrain from carrying on or engaging in, directly or indirectly, (i) any Competing Business . Accordingly, the Participant will not, directly or indirectly, own, manage, operate, join, become an employee of, partner in, owner, or member of, control or participate in, be connected with or loan money to, sell or lease equipment or property to, serve as a consultant to, or as a member of the board of directors of, or otherwise be affiliated with any Competing Business in the ownershipRestricted Area. 2. Notwithstanding the restrictions contained in Section 4(a), managementthe Participant or any of the Participant’s affiliates may, operation without violating the provisions of Section 4(a) maintain as a passive investment an ownership interest in any entity or investment vehicle, whether public or private; provided, that neither the Participant nor any of the Participant’s affiliates has the power, directly or indirectly, to control or direct the management or affairs of any businesssuch entity and is not involved in the management of such entity. 3. The Participant further expressly covenants and agrees that during the Nonsolicitation Prohibited Period, whether in corporatethe Participant will not, proprietorship and the Participant will cause the Participant’s affiliates not, to engage or partnership form employ, or otherwisesolicit or contact with a view to the engagement or employment of, any person who is an officer or employee of any member of the Company or any of their Affiliates, canvass, solicit, approach, divert or entice away, or cause to be canvassed, solicited, approached, diverted or enticed away, from any member of the Company Group or any of their Affiliates any person who or which is a retail or office tenant of any of such entities during the period during which the Participant was employed by any member of the Company Group or any such members’ Affiliates, to the extent such activity is to the detriment of the Company Group, or (iiiii) provide consultative canvass, solicit, approach, divert or advice services entice away, or cause to be canvassed, solicited, approached, diverted, or enticed away, from any individual member of the Company Group or entityany of their Affiliates any person who or which is a borrower of any of such entities during the period during which the Participant was employed by any member of the Company Group or any such members’ Affiliates. Notwithstanding the foregoing, in either case the restrictions of Section 4(c)(i) shall not apply with respect to an officer or employee who responds to a general solicitation that is (x) engaged not specifically directed at officers and employees of any member of the Company Group or any of their Affiliates. 4. Before accepting employment, engaging in production, sale or distribution of telecommunication services (a "Telecommunications Company")service, or (y) that otherwise competes becoming affiliated with any other person or entity during any Prohibited Period, the Business, in each case, including any business actually conducted Participant will inform such person or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that entity of the restrictions contained in this Section 7.10(a) shall not restrict the acquisition of a passive investment by ST and the Sellers, directly or indirectly, in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damages. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.Exhibit A.

Appears in 1 contract

Samples: Executive Severance and Change in Control Plan Participation Agreement (Preferred Apartment Communities Inc)

Non-Competition; Non-Solicitation. (a) Neither the Selling Parties nor any of their respective Affiliates shall for a period of three (3) years from and after the Closing Date, directly or indirectly, engage in, operate, perform, control, manage or have any ownership interest in any Person, enterprise or business that develops, manufactures, sells or distributes plastic products or performs plastics-related services in competition with the Business in the Territory (collectively, the “Competing Business”); provided, however, the foregoing restrictions shall not apply to the Retained Business (and none of the Retained Business shall be considered any “Competing Business”). Purchaser acknowledges that (i) through the operation of the Retained Business, the Selling Parties (and their Affiliates) currently develop, manufacture, sell and distribute plastic products and perform plastic-related services in the healthcare (including products such as vitamins, minerals, supplements and nutraceuticals), food container and personal care markets, which includes products such as closures (such as lined and unlined closures), fitments and dispensing systems, cosmetics (other than jars), vials, tubes, containers, and medical devices and (ii) the restrictions in this Section 6.14(a) shall not prohibit the Selling Parties from continuing to operate in such businesses and markets. (b) Notwithstanding the foregoing, the Selling Parties may, without violating this covenant: (i) own as a passive investment not in excess of 5% of the outstanding Capital Stock of a Person that engages in the Competing Business, if such Capital Stock is a security actively traded on an established national securities exchange and (ii) acquire any Person or substantially all of the assets of any Person (an “Acquired Business”) who is engaged in a Competing Business (the “Acquired Competing Operations”); provided, that (x) the Acquired Competing Operations represent less than 25% of the total annual sales of such Acquired Business and (y) the applicable Selling Party divests, or causes to be divested, all of such Acquired Competing Operations included within the Acquired Business within one (1) year after the acquisition of such Acquired Business; provided, that the Selling Parties shall be entitled to retain the Acquired Competing Operations if such Acquired Competing Operations when taken together with all other Acquired Competing Operations then engaged in, operated, performed, Controlled, managed or owned by the Selling Parties, generated less than $50 million in sales for the previous 12-month period and; provided, further, that if at any time the aggregate sales of all Acquired Competing Operations then engaged in, operated, performed, controlled, managed or owned by the Selling Parties exceed $50 million for the previous 12-month period, the Selling Parties will be required to promptly divest or cause to be divested such portion of the Acquired Competing Operations as may be necessary to reduce such sales to less than $50 million. (c) For a period from of three (3) years following the date hereof until Closing Date, the later of the fifth anniversary of the Initial Closing Date (the "Restricted Period"), ST and the Sellers shall Selling Parties will not, and shall cause their respective Affiliates not to, directly solicit for employment any employee of a Target Entity as of the date hereof or indirectly, (i) own, manage, operate, control or participate in as of the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services Closing Date (a "Telecommunications Company"“Covered Employee”), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained nothing in this Section 7.10(a6.14(c) shall not restrict be deemed to prohibit the acquisition of a passive investment by ST and the Sellers, directly or indirectly, in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted Period, the Sellers and ST shall not and shall cause Selling Parties and/or their respective Affiliates not to: from (i) causemaking general solicitations not targeted at Covered Employees (including job announcements in newspapers and industry publications or on the Internet), solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce soliciting any Covered Employee whose employment is terminated by Purchaser prior to a Selling Party and/or any of its Affiliates soliciting such Covered Employee or encourage (iii) hiring any material actual or prospective client, customer, supplier or licensor of Covered Employee as long as the Business (including any existing or former customer of Selling Parties have not breached the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The non-solicitation covenants and undertakings contained in this Section 7.10 relate 6.14(c) with respect to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damagesCovered Employee. (d) The parties hereto agree that, if If any provision or part of this Section 6.14 is held by a court or other authority of competent jurisdiction to be invalid or unenforceable, the Parties agree that the court or authority making such determination will have the power to reduce the duration or scope of such provision or to delete specific words or phrases as necessary (but only to the minimum extent necessary) to cause such provision or part to be valid and enforceable. If such court or authority does not have the legal authority to take the actions described in the preceding sentence, the Parties agree to negotiate in good faith a final nonappealable judgment determines modified provision that a specified time periodwould, a specified geographical areain so far as possible, a specified business limitation or any other relevant feature reflect the original intent of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party6.14 without violating Applicable Law.

Appears in 1 contract

Samples: Equity Purchase Agreement (Berry Plastics Corp)

Non-Competition; Non-Solicitation. Employee and Company agree to the non-competition and non-solicitation provisions of this Article VII (i) in exchange for Company’s promises set forth in Section 5.1 above, (ii) to protect the trade secrets and Confidential Information of Company disclosed or entrusted to Employee by Company or created or developed by Employee for Company and the goodwill developed by Employee on behalf of Company, (iii) in consideration of the equity awards described in Article IV above, and (iv) as an express incentive for Company to enter into this Agreement and to provide the employment, compensation and benefits provided for herein. (a) For a period from Subject to the date hereof until exception set forth in Section 7.2(b) below, Employee expressly covenants and agrees that during the later of Prohibited Period, Employee will not directly or indirectly engage in any Business in competition with Company or its Affiliates in the fifth anniversary of Restricted Area. During the Initial Closing Date (the "Restricted Prohibited Period"), ST and the Sellers shall Employee will not, and shall will cause their Employee’s controlled Affiliates (to the fullest extent permitted by applicable law) not to, directly or indirectly, (i) own, manage, operate, join, become an employee of, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwisebe connected with, or (ii) provide consultative loan money or advice services sell or lease real estate to any individual or entity, Competing Business in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period Area, as the parties acknowledge that any such activities would be engaging in Business in competition with Company in violation of this Section 7.2(a). (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that b) Notwithstanding the restrictions contained in this Section 7.10(a) shall 7.2(a), Employee or any of employee’s Affiliates may own an aggregate of not restrict more than 2.0% of the acquisition outstanding stock of any class of any corporation engaged in the Business, if such stock is listed on a national securities exchange or regularly traded in the over-the-counter market by a member of a passive investment by ST and national securities exchange, without violating the Sellersprovisions of Section 7.2(a), provided that neither Employee nor any of Employee’s Affiliates has the power, directly or indirectly, to control or direct the management or affairs of any such corporation and is not involved in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% management of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipcorporation. (c) The Employee further expressly covenants and undertakings contained in this Section 7.10 relate to matters which are of a specialagrees that during the Prohibited Period, unique Employee will not, and extraordinary character and a violation of any of the terms of this Section 7.10 he will cause irreparable injury his controlled Affiliates (to the Buyer fullest extent permitted by applicable law) not to (i) induce any officer or DR Partnershipemployee of Company or a Company Affiliate to terminate his or her employment with such entity, (ii) solicit or contact with a view to the amount engagement or employment of, any person who is an officer or employee of which will Company or a Company Affiliate, (iii) canvass, solicit, approach or entice away or cause to be impossible to estimate canvassed, solicited, approached or determine and which cannot be adequately compensated. Accordingly, the remedy at law for enticed away from Company or a Company Affiliate any breach of this Section 7.10 will be inadequate. Therefore, the Buyer person or DR Partnership will be entitled to an injunction, restraining order entity who or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated a customer of Company or a Company Affiliate during the period during which Employee is employed by Company and about whom Employee had access to Confidential Information, or (iv) canvass, solicit or approach any investor in Company or its Affiliates for the parties purpose of inducing such investor to the foregoing covenant shall not be considered a measure of invest in, or limit on such damagesbecome affiliated with, an investment or business opportunity other than with Company or its Affiliates. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Employment Agreement (Philadelphia Energy Solutions Inc.)

Non-Competition; Non-Solicitation. (a) For a period from of three (3) years commencing on the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "Restricted Period"), ST and the Sellers SCIFSC shall not, and shall cause their not permit any of its Affiliates not to, directly or indirectly, (i) own, manage, operate, control engage in or participate assist others in engaging in the ownership, management, operation Restricted Business in the Territory or control of any businessacquire or commit to acquire the entity listed on Exhibit 7.06, whether in corporateby merger, proprietorship purchase of all or partnership form substantially all of the capital stock, equity interests or assets, reorganization or otherwise, ; or (ii) provide consultative intentionally interfere in any material respect with the business relationships (formed as of the date of this Agreement) between the Company and customers or advice services to suppliers of the Company. Notwithstanding the foregoing, SCIFSC may (A) own, directly or indirectly, solely as an investment, securities of any individual Person traded on any national securities exchange if it is not a controlling Person of, or entitya member of a group which controls, such Person and does not, directly or indirectly, own five percent (5%) or more of any class of securities of such Person and (B) acquire or hold passive investments in either case investment funds, partnership or similar entities in which it does not have a controlling interest or otherwise possess, directly or indirectly, control or influence over the investment decisions or management of such entity or (C) commence employment with a subsidiary, division or unit of any entity that engages in a business that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes competitive with the BusinessRestricted Business so long as SCIFSC and such subsidiary, division or unit does not engage in each case, including the Restricted Business and SCIFSC does not have any involvement in or exert any influence over any business actually conducted or about that engages in the Restricted Business. SCIFSC acknowledges that the purchase price to be conducted during paid at Closing for the Restricted Period (Shares as specified in Section 1.03(b)(i) includes, among other things, a "Restricted Business")value associated with the goodwill of the Company, including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in this Section 7.10(a7.06 are reasonable and necessary to protect the legitimate interests of Buyer, including without limitation the protection of the goodwill of the Company. (b) During the Restricted Period, SCIFSC shall not, and shall not restrict the acquisition permit any of a passive investment by ST and the Sellersits Affiliates to, directly or indirectly, in the aggregate of less than 5% hire or solicit any employee of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, Company (to the ownership extent such employee was employed with the Company as of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided furtherClosing Date), however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership such employee to leave such employment or hire, employ or otherwise engage hire any such individualemployee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 7.06 shall prevent SCIFSC or any of its Affiliates from hiring (i) any employee whose employment has been terminated by the Company or Buyer or (ii) causeafter one hundred and eighty (180) days from the date of termination of employment, induce any employee whose employment has been terminated by the employee. (c) During the Restricted Period, SCIFSC shall not, and shall not permit any of its Affiliates to, directly or encourage indirectly, solicit or entice, or attempt to solicit or entice, any material actual clients or prospective client, customer, supplier or licensor customers of the Business Company (including any existing to the extent such client or former customer of the Sellers or the Subsidiaries and any Person that becomes was a client or customer of the Business after Company as of the Initial ClosingClosing Date) for purposes of diverting their business or any other Person who has a material business relationship with services from the Business, to terminate or modify any such actual or prospective relationshipCompany. (cd) The covenants SCIFSC acknowledges that a breach or threatened breach of this Section 7.06 could give rise to irreparable harm to Buyer, for which monetary damages may not be an adequate remedy, and undertakings hereby agrees that in the event of a breach or a threatened breach by SCIFSC of any such obligations, Buyer may, 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. (e) SCIFSC acknowledges that the restrictions contained in this Section 7.10 relate 7.06 are reasonable and necessary to matters which are protect the legitimate interests of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equityBuyer. In the event that the Buyer or DR Partnership were to seek damages for any breach of covenant contained in this Section 7.107.06 should ever be adjudicated to exceed the time, the portion of the Purchase Price which geographic, product or service, or other limitations permitted by applicable law in any jurisdiction, then any court is allocated by the parties expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the foregoing maximum time, geographic, product or service, or other limitations permitted by applicable law. The covenants contained in this Section 7.06 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 be considered a measure of invalidate or limit on render unenforceable the remaining covenants or provisions hereof, and any such damagesinvalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction. (df) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this This Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against 7.06 shall survive the applicable partyClosing.

Appears in 1 contract

Samples: Stock Purchase Agreement (Green Plains Inc.)

Non-Competition; Non-Solicitation. (a) For a period from the date hereof until the later Seller agrees that, in consideration of the fifth payment by Buyer of the Purchase Price, Seller shall not, on or prior to the second anniversary of the Initial Closing Date (Date, directly or indirectly: run, own, manage, operate or control any business, venture or activity which is the "Restricted Period")same as or substantially similar to, ST and or competes with, the Sellers KB Toy Business in the United States or any of its territories or possessions. Nothing contained in the immediately preceding sentence shall not, and shall cause their Affiliates not toprevent Seller from, directly or indirectly, (i) own, manage, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, or selling toys to retail stores and distributors; (ii) provide consultative continuing to operate its close-out business consistent with its past practices, including, but not limited to, the sale of toys; and (iii) running, owning, managing, operating or advice services controlling a business which sells toys as an integrated part of a close-out business, including a website dedicated to any individual or entitythe sale of close-out goods, in either case provided such business is not primarily a sales outlet for toys and such business does not operate through a separate storefront for the sale of toys. In addition to the foregoing, Seller agrees that is (x) engaged in productionwith respect to products that are marketed by Buyer, sale any of its Subsidiaries, the Company or distribution any of telecommunication services (a the Company's Subsidiaries as "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited KB Exclusives," to the prepaid wireless business extent that Seller and/or any of its Affiliates obtains rights to market such products from the manufacturer or prepaid calling carddistributor thereof, carrier wholesale Seller and dial-around business; provided, however, that the restrictions contained in this Section 7.10(a) such Affiliates shall not restrict the acquisition of a passive investment by ST only sell such products to consumers and the Sellers, directly or indirectly, in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 only through their retail operations and (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assetsii) in a Restricted Business so long as ST is not employed by, no event shall Seller or in any way involved with of its Affiliates use the Restricted Business and does not provide, whether directly KB trademark or indirectly, any service (whether as consultant, advisor or otherwise) to or for variant thereof without the benefit prior written consent of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied withBuyer. (b) For Except as provided by applicable law, on or prior to the Restricted Periodsecond anniversary of the Closing Date, neither Seller nor any of its Affiliates shall, without the Sellers prior written consent of Buyer, solicit to employ or employ any individual who is an employee of the Company or any of its Subsidiaries on the date hereof, or at any time following the date hereof and ST shall not prior to such second anniversary, and shall cause their Affiliates not to: who on or prior to the Closing Date occupies a home office position (other than a secretarial or clerical position) or a management position, unless (i) causesuch individual shall have been, solicitor received notice that he or she will be, induce involuntarily terminated by the Company or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; Subsidiary or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor at least six months shall have elapsed following the cessation of the Business such individual's employment (including any existing or former customer other than as a result of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closinginvoluntary termination) with Buyer or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipof its Affiliates. (c) The covenants Because of (i) the difficulty of measuring economic losses to Buyer and undertakings contained (ii) the immediate and irreparable damage that could be caused to Buyer and its Affiliates for which they would have no other adequate remedy, in this Section 7.10 relate to matters which are each case as a result of a special, unique and extraordinary character and a violation of any of the terms breach by Seller of this Section 7.10 will cause irreparable injury to 5.09, Buyer, in its sole and absolute discretion, may enforce the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach provisions of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or 5.09 by injunction and other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and relief, in addition to obtaining any other rights and remedies which the remedy or relief available to Buyer or DR Partnership may have hereunder or (including damages at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damageslaw). (d) The parties hereto agree thatthat (i) the covenants set forth in this Section 5.09 are severable and separate, and the unenforceability of any specific covenant shall not affect the provision of any other covenant and (ii) if any court of competent jurisdiction shall determine that the scope, time or territorial restrictions set forth in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 such covenant is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature it is the intention of the parties that such restriction be enforced to the fullest extent which is determined by such the court to be deems reasonable, not arbitrary and not against public policy may this Section 5.09 shall thereby be enforced against the applicable partyreformed.

Appears in 1 contract

Samples: Stock Purchase Agreement (Consolidated Stores Corp /De/)

Non-Competition; Non-Solicitation. (a) For a period from the date hereof until the later Each of the fifth anniversary of the Initial Closing Date (the "Restricted Period"), ST and the Indemnifying Sellers shall not, and shall cause their Affiliates not to, directly or indirectly, acknowledges (i) own, manage, operate, control or participate in the ownership, management, operation or control competitive nature of any the Company's business, whether in corporate, proprietorship or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in this Section 7.10(a) shall not restrict the acquisition of a passive investment by ST and the Sellers, directly or indirectlythat, in the aggregate course of less than 5% such Indemnifying Seller's service as a director, officer and employee of the outstanding capital stock of any companyCompany, whether publicly traded or privately held, engaged in a Restricted Business or, such Indemnifying Seller has become familiar with the ownership Company's trade secrets and other confidential information of the securities of Restricted Businesses set forth in Schedule 7.10 Company and/or its business and (which amount of securities shall not be increased without BEIiii) that such Indemnifying Seller's consent; provided further, however, ST may be employed by any entity other than a Telecommunications services to the Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are have been of a special, unique and extraordinary character value to the Company. Accordingly, in consideration of the promises contained herein and the consideration received by the Indemnifying Sellers in connection with the consummation of the transactions contemplated hereby, and in order to induce Parent and Acquisition Sub to enter into this Agreement, each Indemnifying Seller hereby agrees that during the period beginning on the Closing Date and ending on the third anniversary thereof (the "Non-Compete Period"), such Indemnifying Seller shall not in any manner, directly or indirectly, as an employee, employer, consultant, agent, principal, partner, manager, stockholder, officer, director, or in any other individual or representative capacity, engage in, promote or become financially interested in any business that develops software products or operates an internet site that (i) assists third-party companies with procurement and management of human resources within such companies' organizations, (ii) creates a violation person-to-person or business-to-business marketplace for procurement of human resources, or (iii) provides content, back-end services and job-bidding functionality targeted for use by and among independent professionals, including consultants and expert advisors (i.e. a bidding system, reputation system and directory or buyer/seller matching system), in those places where the Company, Parent or any of its subsidiaries are doing business as of the Closing Date or Parent, the Company and/or any of such subsidiaries has invested substantial expense in anticipation of conducting (or commencing to conduct) any portion of its business in such area. Notwithstanding the foregoing, in the event that Xxxxxxx Xxxxxx'x employment with Parent or any subsidiary of Parent is terminated prior to the second anniversary of the Closing Date, then the Non-Compete Period with respect to Xxxxxxx Xxxxxx shall terminate on the first anniversary of such termination. Anything to the contrary contained herein notwithstanding, any Indemnifying Seller may own, in the aggregate, less than 1% of the issued and outstanding capital stock of any publicly traded company. (b) Each of the Indemnifying Sellers agrees that, for a period of three years following the Closing Date, such Indemnifying Seller will not directly or indirectly through another Person (i) solicit any of the terms employees of Parent or the Surviving Corporation to leave their employ; (ii) hire any individual who was an employee of Parent or the Surviving Corporation or any of their Affiliates until six months after such individual's employment relationship has been terminated; or (iii) induce any customer, supplier or licensee with a business relationship with Parent or the Surviving Corporation to cease doing business with Parent or the Surviving Corporation, as the case may be. (c) If, at the time of enforcement of this Section 7.10 will cause irreparable injury to 9.4, a court holds that the Buyer or DR Partnershiprestrictions stated herein are unreasonable under the circumstances then existing, the amount of which will parties hereto agree that the maximum period, scope or geographical area reasonable under such circumstances shall be impossible substituted for the stated period, scope or area. Because each Indemnifying Seller's services are unique and because each Indemnifying Seller has access to estimate or determine confidential information and which cannot be adequately compensated. Accordinglywork product, the parties hereto agree that money damages would be an inadequate remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damages9.4. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Merger Agreement (Opus360 Corp)

Non-Competition; Non-Solicitation. (a) For a period from Except as expressly provided in this Agreement or any Ancillary Agreement or with the date hereof until the later prior written consent of the fifth anniversary of the Initial Closing Date (the "Restricted Period")Buyer, ST and the Sellers shall not, and shall cause each of their Controlled Affiliates not to, directly or indirectly: (i) for a period of three (3) years from and after the Closing Date, directly or indirectly as a stockholder, investor, member, partner or otherwise, own, manage, operate or engage in any business that performs MRO services that compete with the Business (for the avoidance of doubt, as carried on by Sellers (directly or indirectly through their Controlled Affiliates, including the Transferred Subsidiaries) as of the date hereof and as of immediately prior to the Closing) in any jurisdiction in the world in which the Business sells or provides services as of the date hereof, as of immediately prior to the Closing or for the twelve months immediately prior to the Closing (the “Competing Activity”); provided that, this Section 4.18(a)(i) shall not be deemed breached as a result of (A) Sellers or their Controlled Affiliates performing any act expressly contemplated by this Agreement or any Ancillary Agreement or with the prior written consent of Buyer; (B) Sellers or their Controlled Affiliates performing MRO services on any products that any such Seller or Controlled Affiliate designed, developed or manufactured; (C) Sellers or their Controlled Affiliates performing MRO services on any of the products set forth on Section 9.1(a) of the Seller Disclosure Letter; or (D) the acquisition or ownership, directly or indirectly, by Sellers or their Controlled Affiliates of (x) the equity securities of any Person that engages in the Competing Activity if Seller and its Controlled Affiliates, directly or indirectly, do not own in aggregate more than 10% of the outstanding equity securities of such Person or (y) any Person that engages in the Competing Activity if the Competing Activity accounts for 20% or less of the consolidated annual revenues of such Person (based on such Person’s latest annual financial statements); or (ii) for a period of two (2) years from and after the Closing Date, solicit for employment or hire any Transferred Business Employee; provided, that this Section 4.18(a)(ii) shall not preclude Sellers or any of their Controlled Affiliates from (A) soliciting for employment any Transferred Business Employee who responds to a general solicitation through a public medium or general or mass mailing by or on behalf of Sellers that is not targeted at Transferred Business Employees, or hiring any non-management Transferred Business Employee that responds to any such general solicitation, or (B) hiring any Transferred Business Employee whose employment has been terminated by Buyer or its Controlled Affiliates prior to commencement of solicitation by Sellers or their Controlled Affiliates or employment discussions between Sellers or their Controlled Affiliates and such individual. (b) Except as expressly provided in this Agreement or any Ancillary Agreement or with the prior written consent of Sellers, Buyer shall not, and shall cause each of its Controlled Affiliates not to, directly or indirectly, to the extent permitted by applicable Law, for a period of two (2) years from and after the Closing Date, solicit for employment or hire any employees of Sellers or their Affiliates set forth on Section 4.18(b) of the Seller Disclosure Letter; provided, that this Section 4.18(b) shall not preclude Buyer or any of its Controlled Affiliates from (i) own, manage, operate, control soliciting for employment any employee of Sellers or participate in the ownership, management, operation their Affiliates who responds to a general solicitation through a public medium or control general or mass mailing by or on behalf of any business, whether in corporate, proprietorship Buyer or partnership form its Controlled Affiliates that is not targeted at such employees of Sellers or otherwise, their Affiliates or (ii) provide consultative soliciting for employment or advice services to hiring any individual employee of Sellers or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in this Section 7.10(a) shall not restrict the acquisition of a passive investment by ST and the Sellers, directly or indirectly, in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce whose employment has been terminated by Sellers or encourage any Employees their Controlled Affiliates prior to commencement of the solicitation by Buyer or DR Partnership to leave such its Controlled Affiliates or employment discussions between Buyer or hire, employ or otherwise engage any its Controlled Affiliates and such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The covenants Xxxxx and undertakings contained in Sellers acknowledge and agree that (i) it would be difficult to calculate damages to Buyer or Sellers from any breach of the obligations under this Section 7.10 relate to matters which are of a special4.18, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable (ii) injury to the Buyer or DR Partnership, the amount of which will Sellers from any such breach would be irreparable and impossible to estimate or determine measure and which cannot be adequately compensated. Accordingly, (iii) the remedy at law for any breach or threatened breach of this Section 7.10 will 4.18, including monetary damages, would therefore be inadequate. Thereforean inadequate remedy and, accordingly, Buyer and Sellers shall have the Buyer or DR Partnership will be entitled right to an injunction, restraining order specific performance and injunctive or other equitable relief from any court of competent jurisdiction in the event of any breach of its rights under this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and 4.18, in addition to any and all other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant and all such rights and remedies shall not be considered a measure of or limit on such damagescumulative. (d) The parties Xxxxx and Sellers acknowledge and agree that this Section 4.18 constitutes an independent covenant and shall not be affected by performance or nonperformance of any other provision of this Agreement by Sellers and Buyer or their respective Controlled Affiliates. Xxxxx and Sellers hereto further acknowledge and agree that, if any court that the restrictive covenants and other agreements contained in this Section 4.18 are an essential part of competent this Agreement and the transactions contemplated hereby. It is the intent of Buyer and Sellers that the provisions of this Section 4.18 shall be enforced to the fullest extent permissible under the Laws and public policies applied in each jurisdiction in which enforcement is sought. Buyer and Sellers have independently consulted with its counsel and, after such consultation, agree that the covenants set forth in this Section 4.18 are intended to be reasonable and proper in scope, duration and geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final nonappealable judgment determines that determination of a specified time period, a specified geographical area, a specified business limitation court or any other relevant feature Governmental Authority of competent jurisdiction, Buyer and Sellers agree that: (i) such determination shall not affect the validity or enforceability of (A) the offending term or provision in any other situation or in any other jurisdiction, or (B) the remaining terms and provisions of this Section 7.10 4.18 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is unreasonablevalid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined in order to render the restrictive covenants set forth in this Section 4.18 enforceable to the fullest extent permitted by such court to applicable Law; and (iii) the restrictive covenants set forth in this Section 4.18 shall be reasonable, not arbitrary and not against public policy may be enforced against the applicable partyenforceable as so modified.

Appears in 1 contract

Samples: Securities and Asset Purchase Agreement (Triumph Group Inc)

Non-Competition; Non-Solicitation. (a) For a period from of five years after the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "Restricted Period"), ST and the Sellers Vitro Entities shall not, and shall cause their Affiliates not to, directly or indirectly, (i) ownengage in any business anywhere in the world that manufactures, produces, distributes or sells, the following products: glass tableware (including glass barware, stemware and other drinkware, as well as glass dinnerware), glass vessels used for candles, blender jars, jars for mole, jams or jellies, coffee carafes and microwave oven plates and any items made of borosilicate glass, including the glass products listed in the brochures and marketing materials the cover pages of which are attached as Exhibit 5.14(a) and glass products of the kind manufactured, produced, distributed or supplied by the Acquired Companies at any time during the two-year period prior to the Closing (such products, the "Specified Products"), or (ii) without the prior written consent of Purchasers, own an interest in, manage, operate, control join, control, lend money or render financial or other assistance to or participate in the ownershipor be connected with, managementas an officer, operation or control of any businessemployee, whether in corporatepartner, proprietorship or partnership form stockholder, consultant or otherwise, any Person that competes with the Business or the Acquired Companies in manufacturing, producing, distributing or supplying any Specified Products. (b) For a period of three years from the Closing Date, the Vitro Entities shall not, and shall use their respective commercially reasonable efforts to cause their respective distributors not to, solicit sales from Crisa Customers of any products that any Vitro Entity manufactures, produces, distributes or supplies and with respect to which the primary purpose (in the context of such solicitation) is to substitute for any Specified Products. (c) Notwithstanding the foregoing, none of the following shall be deemed to violate this Section 5.14: (i) the Vitro Entities' ownership, whether direct or indirect, legal or beneficial, of securities in any competitor of the Acquired Companies if (A) the securities owned by the Vitro Entities, in the aggregate, represent no more than five percent of the outstanding voting power of the competitor, and (B) there is no contractual or ownership relationship between the competitor and any of the Vitro Entities other than the ownership by the Vitro Entities of the securities in question, other than any such relationship or agreements that (y) are related to businesses of such competitor other than businesses involving the Specified Products, or (z) are of a nature typically entered into in connection with such equity investments (for example, shareholders, voting or registration rights agreements); (ii) provide consultative the Vitro Entities' ownership, whether direct or advice services to indirect, legal or beneficial, of any individual or entitysecurities in Xxxxx Xxxxxxxxxx Ind. e Com. S/A if (A) the securities owned by the Vitro Entities, in either case the aggregate, represent no more than eight percent of the outstanding common equity that has voting power, and no more than eight percent of the outstanding preferred securities that have limited voting rights, and (B) there is no contractual or ownership relationship between Xxxxx Xxxxxxxxxx Ind. e Com. S/A and any of the Vitro Entities other than the ownership by the Vitro Entities of the securities in question, other than any such relationship or agreements that (xy) engaged in production, sale or distribution are related to businesses of telecommunication services (a "Telecommunications Company")Xxxxx Xxxxxxxxxx Ind. e Com. S/A other than businesses involving the Specified Products, or (yz) that otherwise competes are of a nature typically entered into in connection with such equity investments (for example, shareholders, voting or registration rights agreements); (iii) the BusinessVitro Entities' ownership, whether direct or indirect, legal or beneficial, of any securities in any entity that, as of the date of this Agreement, operates one or more glass tableware manufacturing facilities in the Republic of Colombia and/or the Federative Republic of Brazil if (A) the securities owned by the Vitro Entities, in each casethe aggregate, including represent no more than 30 percent of the outstanding voting power of such company or its Affiliates; (B) any business actually conducted Vitro Entities owning such securities acquired the securities in connection with, or about to be conducted using the proceeds of, a sale or other disposition by any of the Vitro Entities, in one or a series of related transactions, of non-cash assets or stock; (C) during the Restricted Period (a "Restricted Business")Period, including but not limited none of the Vitro Entities nor their Representatives participates in or controls all or any part of the day-to-day management or operations of the competitor other than such activities that are related to the prepaid wireless business businesses of such competitor that do not involve and do not compete with the Specified Products; (D) during the Restricted Period, the percentage of seats on the board of directors (or prepaid calling cardequivalent governing body) of the competitor or any of its equity holders (other than any Vitro Entities owning the securities in question) held by Representatives of the Vitro Entities shall not exceed the percentage of outstanding securities of the competitor owned by the Vitro Entities, carrier wholesale in the aggregate; (E) during the Restricted Period, the Vitro Entities and dial-around business; provided, however, that any Representatives of any of the restrictions contained Vitro Entities who are members of the board of directors (or equivalent governing body) of the competitor or any of its equity holders (other than any Vitro Entities owning the securities in this Section 7.10(aquestion) shall agree in writing not restrict to disclose, and in fact shall not disclose, to the acquisition competitor, its officers, directors, equity holders or employees any proprietary information (including information concerning or relating to the general business operations, financial information, marketing strategy and information, product development efforts, product concepts, inventions, sales, costs, profits, pricing methods, historical, current or projected financial information, or technical information) that relates to the Acquired Companies and was obtained by any of a passive investment by ST and the SellersVitro Entities prior to the Closing Date; (F) during the Restricted Period, none of the Excluded Assets shall be utilized, directly or indirectly, in the aggregate of less than 5% of the outstanding capital stock manufacture, production, distribution or supply of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 Specified Products and (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assetsG) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For during the Restricted Period, the Vitro Entities shall use their commercially reasonable efforts to cause the competitor to retain Libbey Inc. or one or more of its Subsidiaries as its exclusive distributor of the competitor's glassware exports into the United States; (iv) the manufacture, production, distribution, sale or supply without limitation of markets or territories of any (A) metal flatware of the variety manufactured, produced or supplied by FACUSA, (B) lead crystal glassware of the variety manufactured, produced or supplied by any Vitro Entity, (C) candle containers sold by any Vitro Entities or Empresas Comegua S.A. and its Affiliates exclusively outside of the U.S. and Mexico and (D) containers (made of soda lime glass, borosilicate, or otherwise) manufactured primarily for the purpose of packaging, including the packaging of food products (including mole and jelly jars with a "screw cap" or "twist off", but not a "clamp lid", design), beverages, pharmaceuticals, and cosmetics, and (E) borosilicate glass tubing for use in producing ampoules and lab xxxx; (v) the manufacture, production, distribution, sale or supply of any Specified Products (other than sales covered by Section 5.14(c)(iv)) of an aggregate amount less than or equal to (A) $300,000 minus (B) the amount of the actual gross sales of Specified Products in the territories covered by Section 3(a)(i) of the Non-Competition Agreement during any rolling twelve-month period or any portion thereof; and (vi) the redistribution, resale or re-supply of any Specified Products that were manufactured, produced, distributed, sold or supplied by Purchasers or any of their Affiliates. (d) Sellers shall certify to Purchasers, in writing and ST on a semi-annual basis, the amount of sales subject to any of Sections 5.14(a), (b) and (c). (e) For a period of three years from the Closing Date, neither Purchasers nor the Acquired Companies nor their respective Affiliates, on the one hand, nor any Vitro Entity, on the other hand, will take any action, directly or indirectly to induce or solicit any of the other party's officers or employees to terminate their employment with such other party (other than by conducting a general solicitation for employees, including through the use of employment agencies), provided that this Section 5.14(e) shall not and shall cause their Affiliates not to: prohibit (i) causeany Party from advertising employment opportunities in any national newspaper, solicittrade journal or other publication in a major metropolitan area, induce or encourage any Employees of the Buyer third party Internet website posting, or DR Partnership negotiating with, offering employment to leave or employing such employment or hirepersons contacted through such medium, employ or otherwise engage any such individual; or (ii) causeany Party from participating in any third party hiring fair or similar event open to the public or negotiating with, induce offering employment to or encourage employing such persons contacted through such medium, (iii) the Acquired Companies from directly or indirectly offering employment to, soliciting for employment or employing any material actual employees of any Vitro Entity (A) whose principal employment duties primarily relate at such time (or prospective client, customer, supplier or licensor of on the Closing Date primarily related) to the Business or the Acquired Companies either directly or indirectly (including pursuant to any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial ClosingAncillary Agreement) or (B) who are listed on Exhibit 5.14(e) or (iv) Purchasers or their Affiliates from offering employment to, soliciting for employment or employing the General Manager. For a period of three years from the Closing Date, Sellers shall deliver written notice to Purchasers promptly following any other Person who has decision by a material business relationship with the Business, Vitro Entity to terminate or modify the employment of any individual described in the preceding clauses (A) and (B) (and in any event prior to such actual or prospective relationshiptermination, unless such termination shall have been for cause). (cf) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation Restricted Period shall be extended by the length of any period during which a Party is in breach of the terms of this Section 7.10 will cause irreparable injury 5.14. (g) Sellers acknowledge that the covenants set forth in this Section 5.14 are an essential element of this Agreement and that, but for the agreement of Sellers to the Buyer or DR Partnershipcomply with these covenants, the amount of which will be impossible to estimate or determine and which canPurchasers would not have entered into this Agreement. Sellers acknowledge that this Section 5.14 constitutes an independent covenant that shall not be adequately compensatedaffected by performance or nonperformance of any other provision of this Agreement by the Parties. Accordingly, Sellers have independently consulted with their counsel and after such consultation agree that the remedy at law for covenants set forth in this Section 5.14 are reasonable and proper. (h) If any breach provision of this Section 7.10 will 5.14 should be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from found by any court of competent jurisdiction in to be unreasonable by reason of its being too broad as to the event period of any breach of this Section 7.10 without the necessity of proving actual damages time, territory, or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative scope, then, and in addition that event, such provision will nevertheless remain valid and fully effective, but will be considered to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event be amended so that the Buyer period of time, territory, or DR Partnership were scope set forth will be changed to seek damages for any breach be the maximum period of this Section 7.10time, the portion of largest territory, or the Purchase Price broadest scope, as the case may be, which is allocated by the parties to the foregoing covenant shall not would be considered a measure of or limit on such damages. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined found reasonable and enforceable by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable partycourt.

Appears in 1 contract

Samples: Purchase Agreement (Vitro Sa De Cv)

Non-Competition; Non-Solicitation. A. Employee expressly acknowledges and agrees as follows: (ai) For Huxxxx xompensates its employees, among other things, to develop and to pursue, on Huxxxx’x xehalf, good relationships and goodwill with all customers and potential customers, whether developed by Employee or others within the Huxxxx xrganization; (ii) Employee will be exposed to, acquire and develop knowledge of Confidential Information including, without limitation, Confidential Information related to Huxxxx’x xustomers, operations, and its suppliers; (iii) Employee is able to be gainfully employed by other employers in a period from variety of other industries and businesses that are engaged in businesses that do not involve and are not competitive with any part of Huxxxx’x xusiness. B. In light of the date hereof foregoing, Employee agrees, that while Employee is employed by Huxxxx, and continuing until the later expiration of the fifth anniversary of the Initial Closing Date Covenant Period (the "Restricted Period"), ST and the Sellers as hereinafter defined): (i) Employee shall not, and shall cause their Affiliates not towithin the Restricted Territory (as hereinafter defined), compete with Huxxxx, directly or indirectly, (i) ownwhether for Employee’s own behalf or on behalf of or in conjunction with any other person, managepersons, operatecompany, control partnership, corporation or participate business entity, whether for profit or not-for-profit, by being employed by, participating in, or otherwise being materially connected in the ownership, management, operation or control conduct of any business, whether in corporate, proprietorship business activity that involves providing products or partnership form services that are like or otherwisesimilar to, or competitive with, or would replace or be a substitute for, any one or more of the products and services provided by Huxxxx (hereinafter “Competitive Products”) if such employment, participation, or connection involves (a) ,responsibilities similar to responsibilities Employee had or performed for Huxxxx xt any time during the last eighteen (18) months of Employee’s employment with Huxxxx; (b) supervision of employees or other personnel in the provision of Competitive Products; (c) development or implementation of strategies or methodologies related to the provision of Competitive Products; (d) marketing or sale of Competitive Products; or (e) responsibilities in which Employee would utilize or disclose Confidential Information. (ii) provide consultative or advice services to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in this Section 7.10(a) Employee shall not restrict the acquisition of a passive investment by ST and the Sellerscompete with Huxxxx, directly or indirectly, whether for Employee’s own behalf or on behalf of or in the aggregate of less than 5% of the outstanding capital stock of conjunction with any other person, persons, company, partnership, corporation or business entity, whether publicly traded for profit or privately heldnot-for-profit, engaged in a Restricted Business orby calling upon, contacting, diverting, soliciting, or doing business for or with, any “Client” of Huxxxx (as hereinafter defined) for the ownership purpose of the securities of Restricted Businesses set forth in Schedule 7.10 offering or providing any Competitive Product. (which amount of securities iii) Employee shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, without the prior written consent of Huxxxx, (a) induce, solicit, entice, or encourage any service (whether as consultantofficer, advisor director, employee or otherwise) other individual to leave his or for the benefit of the Restricted Business or the entity in connection her employment with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. Huxxxx, (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) causeinduce, solicit, induce entice, or encourage any Employees officer, director, employee or other individual to compete in any way with the products and services of Huxxxx, or to violate the Buyer terms of any employment, non-competition, confidentiality or DR Partnership to leave such employment or hire, employ or otherwise engage any such individualsimilar agreement with Huxxxx; or (iic) causeemploy, induce offer to employ, contract with, offer to contract with, or encourage do business with any material actual officer, director, employee or prospective clientother individual who is employed by Huxxxx. C. For purposes of this paragraph “12”, customerthe Covenant Period shall be twenty-four (24) months after the Employee’s last day of employment with Huxxxx, supplier or licensor regardless of the Business reason underlying the termination of Employee’s employment. D. Employee acknowledges that many of Huxxxx’x xervices are remedial in nature and, as such, its customers may utilize Huxxxx’x xervices on an infrequent basis over an extended period of time, or following a protracted sales effort over an extended period of time. Employee also acknowledges that because of his position, he will likely have knowledge of Huxxxx’x xustomers through access to Confidential Information, whether or not located within the Restricted Territory (including hereinafter defined). Accordingly, for purposes of this paragraph “12”, the term “Client” shall mean (a) any existing customer or former potential customer of Huxxxx xpon whom Employee, during the Sellers last eighteen (18) months of Employee’s employment with Huxxxx, called upon or with whom Employee had any contact, or as to whom Employee was involved in regard to planning, marketing, conducting, or overseeing an offer to sell products or perform services; (b) any customer as to whom Employee assisted in selling products or in providing services, or as to whom Employee was involved in regard to planning, marketing, conducting, or overseeing the Subsidiaries and offer to sell products or to perform services if the customer received any Person that becomes a client products or customer services from Huxxxx xuring the last eighteen (18) months of the Business after the Initial Closing) or any other Person who has a material business relationship Employee’s employment with the Business, to terminate or modify any such actual or prospective relationship. Huxxxx; (c) The covenants and undertakings contained in this Section 7.10 relate any potential customer of Huxxxx xhose identity employee learned during the eighteen (18) months of Employee’s employment with Huxxxx xr learned from Confidential Information at any time; or (f) any customer for whom Huxxxx xas provided products or services to matters which are of a special, unique and extraordinary character and a violation of at any time during the thirty-six (36) months preceding the last day of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy Employee’s employment with Huxxxx xnd whose identity as a Huxxxx xustomer Employee learned from Confidential Information at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damagestime. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Employment Agreement (Hudson Technologies Inc /Ny)

Non-Competition; Non-Solicitation. (a) For a period from Except as expressly provided in this Agreement or any Ancillary Agreement or with the date hereof until the later prior written consent of the fifth anniversary of the Initial Closing Date (the "Restricted Period")Buyer, ST and the Sellers shall not, and shall cause each of their Controlled Affiliates not to, directly or indirectly: (i) for a period of three (3) years from and after the Closing Date, directly or indirectly as a stockholder, investor, member, partner or otherwise, own, manage, operate or engage in any business that performs MRO services that compete with the Business (for the avoidance of doubt, as carried on by Sellers (directly or indirectly through their Controlled Affiliates, including the Transferred Subsidiaries) as of the date hereof and as of immediately prior to the Closing) in any jurisdiction in the world in which the Business sells or provides services as of the date hereof, as of immediately prior to the Closing or for the twelve months immediately prior to the Closing (the “Competing Activity”); provided that, this Section 4.18(a)(i) shall not be deemed breached as a result of (A) Sellers or their Controlled Affiliates performing any act expressly contemplated by this Agreement or any Ancillary Agreement or with the prior written consent of Buyer; (B) Sellers or their Controlled Affiliates performing MRO services on any products that any such Seller or Controlled Affiliate designed, developed or manufactured; (C) Sellers or their Controlled Affiliates performing MRO services on any of the products set forth on Section 9.1(a) of the Seller Disclosure Letter; or (D) the acquisition or ownership, directly or indirectly, by Sellers or their Controlled Affiliates of (x) the equity securities of any Person that engages in the Competing Activity if Seller and its Controlled Affiliates, directly or indirectly, do not own in aggregate more than 10% of the outstanding equity securities of such Person or (y) any Person that engages in the Competing Activity if the Competing Activity accounts for 20% or less of the consolidated annual revenues of such Person (based on such Person’s latest annual financial statements); or (ii) for a period of two (2) years from and after the Closing Date, solicit for employment or hire any Transferred Business Employee; provided, that this Section 4.18(a)(i) shall not preclude Sellers or any of their Controlled Affiliates from (A) soliciting for employment any Transferred Business Employee who responds to a general solicitation through a public medium or general or mass mailing by or on behalf of Sellers that is not targeted at Transferred Business Employees, or hiring any non-management Transferred Business Employee that responds to any such general solicitation, or (B) hiring any Transferred Business Employee whose employment has been terminated by Buyer or its Controlled Affiliates prior to commencement of solicitation by Sellers or their Controlled Affiliates or employment discussions between Sellers or their Controlled Affiliates and such individual. (b) Except as expressly provided in this Agreement or any Ancillary Agreement or with the prior written consent of Sellers, Buyer shall not, and shall cause each of its Controlled Affiliates not to, directly or indirectly, to the extent permitted by applicable Law, for a period of two (2) years from and after the Closing Date, solicit for employment or hire any employees of Sellers or their Affiliates set forth on Section 4.18(b) of the Seller Disclosure Letter; provided, that this Section 4.18(b) shall not preclude Buyer or any of its Controlled Affiliates from (i) own, manage, operate, control soliciting for employment any employee of Sellers or participate in the ownership, management, operation their Affiliates who responds to a general solicitation through a public medium or control general or mass mailing by or on behalf of any business, whether in corporate, proprietorship Buyer or partnership form its Controlled Affiliates that is not targeted at such employees of Sellers or otherwise, their Affiliates or (ii) provide consultative soliciting for employment or advice services to hiring any individual employee of Sellers or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in this Section 7.10(a) shall not restrict the acquisition of a passive investment by ST and the Sellers, directly or indirectly, in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce whose employment has been terminated by Sellers or encourage any Employees their Controlled Affiliates prior to commencement of the solicitation by Buyer or DR Partnership to leave such its Controlled Affiliates or employment discussions between Buyer or hire, employ or otherwise engage any its Controlled Affiliates and such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damages. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Securities and Asset Purchase Agreement (Aar Corp)

Non-Competition; Non-Solicitation. (a) For a period from of two (2) years commencing on the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "Restricted Period"), ST and neither Seller nor Bxxxx Xxxxxxx (except for work provided to Purchaser post-Closing, if any, or in association with consulting services to buyer of the Sellers Seller’s IT Assets, if any) shall not, and shall cause their Affiliates not to, directly or indirectly, (i) own, manage, operate, control engage in or participate assist others in engaging in a business that competes with the ownership, management, operation or control Web Assets being acquired by the Purchaser (the “Restricted Business”) within the State of any business, whether in corporate, proprietorship or partnership form or otherwise, or California (the “Territory”); (ii) provide consultative or advice services to have an interest in any individual or entity, in either case entity that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in this Section 7.10(a) shall not restrict the acquisition of a passive investment by ST and the Sellers, engages directly or indirectly, indirectly in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not providein the Territory in any capacity, whether directly including as a partner, shareholder, member, employee, principal, agent, trustee or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (iiiii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business Business, as it relates to use of the Web Assets (including any existing or former client or customer of the Sellers or the Subsidiaries Seller and any Person person that becomes a client or customer involved in the Web Assets of the Business after the Initial Closing) ), or any other Person person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. Notwithstanding the foregoing, Seller may work for Purchaser, its Parent or the purchaser of the Seller’s IT Assets or may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if Seller is not a controlling Person of, or a member of a group which controls, such person and does not, directly or indirectly, own five percent (5%) or more of any class of securities of such entity. (b) Seller acknowledges that a breach or threatened breach of this Section 6.12 would give rise to irreparable harm to Purchaser, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Seller of any such obligations, Purchaser shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). (c) The covenants and undertakings Seller acknowledges that the restrictions contained in this Section 7.10 relate 6.12 are reasonable and necessary to matters which are protect the legitimate interests of Purchaser and constitute a special, unique material inducement to Purchaser to enter into this Agreement and extraordinary character and a violation of any of consummate the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided transactions contemplated by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equityAgreement. In the event that the Buyer or DR Partnership were to seek damages for any breach of covenant contained in this Section 7.106.12 should ever be adjudicated to exceed the time, the portion of the Purchase Price which geographic, product or service or other limitations permitted by applicable law in any jurisdiction, then any court is allocated by the parties expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the foregoing maximum time, geographic, product or service or other limitations permitted by applicable law. The covenants contained in this Section 6.12 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not be considered a measure of invalidate or limit on render unenforceable the remaining covenants or provisions hereof, and any such damages. (d) The parties hereto agree that, if invalidity or unenforceability in any court of competent jurisdiction shall not invalidate or render unenforceable such covenant or provision in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable partyjurisdiction.

Appears in 1 contract

Samples: Asset Purchase Agreement (Spendsmart Networks, Inc.)

Non-Competition; Non-Solicitation. (a) For the longer of (A) a period from of three (3) years commencing on the date hereof until Closing Date and (B) the later term of the fifth anniversary Purchase Agreement Supplement, none of Sellers, MyTravel, MyTravel Canada or any of their subsidiaries or Affiliates shall directly or indirectly (i) engage in competition with Purchasers using the same gateways used by Sellers as of the Initial Closing Date or (ii) have an ownership interest in, any person, firm, corporation, association or other enterprise that is directly or indirectly engaged in conducting public charter operations using the same gateways used by Sellers as of the Closing Date (the "Restricted PeriodActivity"), ST and the Sellers shall not, and shall cause their Affiliates not to, directly or indirectly, (i) own, manage, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions nothing contained in this Section 7.10(a) 6.10 shall not restrict the acquisition of a passive investment by ST and the prohibit Sellers, directly MyTravel, MyTravel Canada or indirectlyany of their subsidiaries or Affiliates from owning, in the aggregate aggregate, (x) three percent (3%) or less of any class of capital stock or other equity interest of any company engaged in any Restricted Activity that has securities listed on a national or regional securities exchange or traded in the over-the-counter market or (y) one percent (1%) or less than 5% of any class of capital stock or other equity interest of any other business enterprise engaged in any Restricted Activity. In connection with the foregoing, (i) each Purchaser hereby represents that the limitations set forth herein are reasonable and are properly required for the adequate protection of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide(ii) each of Sellers, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) MyTravel and MyTravel Canada hereby acknowledges and agrees to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied withforegoing. (b) For the Restricted Period, longer of (A) a period of three (3) years commencing on the Sellers Closing Date and ST shall not and shall cause their Affiliates not to: (iB) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion term of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure Agreement Supplement, none of or limit on such damages. (d) The parties hereto agree thatSellers, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time periodMyTravel, a specified geographical area, a specified business limitation MyTravel Canada or any other relevant feature of this Section 7.10 is unreasonable, arbitrary their subsidiaries or against public policy, then a lesser time period, geographical area, business limitation Affiliates shall directly or indirectly induce or attempt to induce any Transferred Employee or other relevant feature which is determined by employee of a Purchaser to leave the employ of such court to be reasonablePurchaser, not arbitrary or in any way interfere with the relationship between such Purchaser and not against public policy may be enforced against the applicable partyany Transferred Employee or other employee thereof.

Appears in 1 contract

Samples: Asset Purchase Agreement (Eresource Capital Group Inc)

Non-Competition; Non-Solicitation. (a) For a period from the date hereof until the later Subject to Section 5.14(b), each of the fifth anniversary of Henschels agrees that, during the Initial Closing Date (the "Restricted Period")Non-Compete Period applicable to such Seller, ST and the Sellers such Seller shall not, and shall cause their its Affiliates not to, directly or indirectly, (i) conduct, own, manage, operate, control have Control of or participate or invest in, by itself or in combination with other Persons (whether as employer, proprietor, owner, shareholder, partner, consultant, agent, lender, guarantor, member, trustee or otherwise), the Subject Business. (b) Notwithstanding Section 5.14(a): (i) The Henschels and their respective Affiliates may acquire and hold, as a passive investment, securities of any Person listed on a stock exchange or automated quotation system to the extent that such investment does not directly or indirectly confer upon such Sellers or any of their respective Affiliates more than 5% of the voting power with respect to, or interests in the ownershipprofits of, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, or such Person; (ii) provide consultative or advice services The Henschels and their respective Affiliates may acquire and hold, as a passive investment, securities of any Person that derives less than 10% of its total annual revenues (measured in its most recent fiscal year for which information in available ending prior to any individual or entitythe date of such acquisition) from activities covered by the Subject Business; (iii) Xxxx Xxxxxxxx may, if no longer employed with the Company, purchase and sell mortgage loans solely for his own account, and Xxxxxxxx Xxxxxxxx and Xxxxxx Xxxxxxxx may, if no longer employed with the Company, assist Xxxx Xxxxxxxx in either case such purchases and sales; (iv) Each of Xxxxxxxx Xxxxxxxx and Xxxxxx Xxxxxxxx may purchase and sell real property and mortgage loans related to such real property solely for his own account; provided that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company")such activity does not conflict with, or (y) that otherwise competes with the Businessdivert attention from, in each case, including any business actually conducted their respective employment obligations or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited duties to the prepaid wireless business Company or prepaid calling card, carrier wholesale and dial-around businessCompany Subsidiary; and (v) Each Xxxxxxxx may retain any interest in HKL Enterprises; provided, however, that the restrictions contained activities of such Xxxxxxxx in this Section 7.10(a) respect of such retained interests shall not restrict materially interfere with such Xxxxxxxx’x duties and responsibilities to the acquisition Company or any Company Subsidiaries. (c) Each of a passive investment by ST the Henschels agrees that, during the Non-Compete Period applicable to such Seller, such Seller shall not, and the Sellersshall cause its Affiliates not to, directly or indirectly, in solicit or attempt to solicit any business within the aggregate of less than 5% scope of the outstanding capital stock Subject Business of any companyclient or investor or potential client or investor of the Company or any Company Subsidiary, whether publicly traded or privately held, engaged in a Restricted Business orinterfere or attempt to interfere with the business relationships of the Company or any Company Subsidiary with such clients or potential clients. For the avoidance of doubt, the ownership activities described in clause (v) of Section 5.14(b), subject to the securities of Restricted Businesses limitations set forth in Schedule 7.10 (which amount of securities therein, shall not be increased without BEI's consent; provided furtherdeemed to violate or breach this Section 5.14(c). (d) Each of the Henschels agree that, howeverduring the Non-Solicit Period applicable to such Seller, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is Seller shall not, and shall cause its Affiliates not employed byto, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, solicit or hire or employ or engage any service Person in any capacity (whether or not for compensation) who at any time during the preceding 12-month period was an employee of, or consultant to, the Company or a Company Subsidiary or who is designated to receive any of the Total Employee Shares; provided, however, that Xxxx Xxxxxxxx shall be able to hire Xxxxxxxx Xxxxxxxx and Xxxxxx Xxxxxxxx (if Xxxxxxxx Xxxxxxxx and Xxxxxx Xxxxxxxx, as consultantapplicable, advisor or otherwiseare no longer employed with the Company) to or assist Xxxx Xxxxxxxx in the purchase of mortgage loans solely for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied withXxxx Xxxxxxxx’x own account. (be) For Sun Mortgage Partners agrees that, during the Restricted PeriodNon-Solicit Period applicable to Sun Mortgage Partners, the Sellers and ST it shall not not, and shall cause their its Affiliates not to: (i) cause, solicitdirectly or indirectly, induce solicit or encourage any Employees of the Buyer hire or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; Person set forth on Schedule 5.14(e) in any capacity (whether or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipnot for compensation). (cf) The Sun Mortgage Partners agrees that, during the Non-Solicit Period applicable to Sun Mortgage Partners, it shall not, and shall cause its Affiliates not to, directly or indirectly, solicit or hire or employ or engage any Person in any capacity (whether or not for compensation), who at any time during the preceding 12-month period was an employee of, or consultant to, the Company or a Company Subsidiary or who is designated to receive any of the Total Employee Shares; provided that this Section 5.14(f) shall not apply unless and until Sun Mortgage Partners or one of its Affiliates shall engage in the Subject Business. (g) Each Seller acknowledges and agrees that the restrictive covenants and undertakings other agreements contained in this Section 7.10 relate 5.14 are an essential part of this Agreement and the Transactions and constitute a material inducement to matters which are Buyers’ entering into and performing their respective obligations under this Agreement and the Ancillary Agreements. It is the intention of the parties hereto that if any of the restrictions or covenants contained herein is held to cover a specialgeographic area or to be for a length of time that is not permitted by Applicable Law, unique or is in any way construed to be too broad or to any extent invalid, such provision shall not be construed to be null, void and extraordinary character of no effect, but to the extent such provision would then be valid or enforceable under Applicable Law, such provision shall be construed and interpreted or reformed to provide for a violation restriction or covenant having the maximum enforceable geographic area, time period and other provisions as shall be valid and enforceable under Applicable Law. Each Seller acknowledges, stipulates and agrees that a breach or non-compliance of any of its obligations under this Section 5.14 will result in irreparable harm and continuing damage to Buyers for which there will be no adequate remedy at law, and therefore agree that Buyers shall be entitled to specific enforcement of the terms hereof and any other equitable remedy to which Buyers may be entitled, including injunctive relief. In the event of this Section 7.10 will cause irreparable injury to the Buyer a breach or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any threatened breach of this Section 7.10 will be inadequate. Therefore5.14, the each of Buyer, Buyer Parent and their respective successors or DR Partnership will be entitled assigns may, in addition to an injunctionother rights and remedies existing in its favor, restraining order or other equitable relief from apply to any court of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce, or prevent any violations of, the event of any breach provisions of this Section 7.10 5.14 without the necessity of proving actual damages or posting any a bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damages. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable partysecurity.

Appears in 1 contract

Samples: Securities Purchase Agreement (Friedman Billings Ramsey Group Inc)

Non-Competition; Non-Solicitation. (a) For a period of five (5) years following the Closing, except as the Purchaser may otherwise agree in writing, the Sellers shall not, and shall cause Seller Parent and its Affiliates that are controlled by Seller Parent (each of Seller Parent and each such Affiliate, a “Controlled Affiliate”) not to, directly or indirectly, engage in any aspect of the business of designing, developing, manufacturing, distributing, marketing and selling concrete and clay building products, in North America (excluding the Canadian provinces of Manitoba, Saskatchewan, Alberta and British Columbia) and the United Kingdom (the “Competing Business”), or perform management, executive or supervisory functions with respect to, or own, operate, control or make any investment in any Person who is engaged in any aspect of a Competing Business. (b) Notwithstanding the foregoing, nothing in Section 5.18(a) shall prohibit the Sellers or any of the Controlled Affiliates from: (i) engaging in the activities described in Section 5.18 of the Disclosure Schedule; (ii) owning or acquiring or investing in securities listed on any national securities exchanges and representing less than five percent (5%) of the outstanding voting power of any Person; (iii) acquiring (including by merger, acquisition, sale of assets or otherwise) and owning any Person or any business that engages in a Competing Business, if (x) at the time of such acquisition the portion of such Person’s or business’ consolidated revenue from the date hereof until Competing Business constitutes less than twenty-five percent (25%) of such Person’s or business’ consolidated revenue during its most recently completed fiscal year or (y) within 180 days of such acquisition, the later Sellers or the Controlled Affiliates, as applicable, dispose of the fifth anniversary portion of the Initial Closing Date business or operations of such acquired Person or business that constitutes a Competing Business or take other actions as shall be necessary such that at the expiration of such 180-day period the portion of such Person’s or business’ consolidated revenue from the Competing Business constitutes less than twenty-five percent (25%) of such Person’s or business’ consolidated revenue during its most recently completed fiscal year (it being agreed that the "Restricted Period"ownership of such Person or business pending such disposition or other actions and the ownership of such Person or business following such disposition shall not be prohibited by Section 5.18(a)); (iv) entering into or engaging in an alliance or joint venture which engages, or whose partners or other equity holders engage, in any Competing Business, if (1) at the time of entering into such alliance or joint venture the portion of such alliance’s or joint venture’s consolidated revenue from the Competing Business constitutes less than twenty-five percent (25%) of such alliance’s or joint venture’s consolidated revenue during its most recently completed fiscal year or (2) within 180 days of entering into such alliance or joint venture the alliance or joint venture shall dispose of the portion of the business or operations of such alliance or joint venture that constitutes the Competing Business or takes other actions as shall be necessary such that at the expiration of such 180-day period the portion of such alliance’s or joint venture’s consolidated revenue from Competing Business constitutes less than twenty-five percent (25%) of such alliance’s or joint venture’s consolidated revenue during its most recently completed fiscal year (it being agreed that the ownership of an interest in such alliance or joint venture pending such disposition or other actions and the ownership of an interest in such alliance or joint venture following such disposition shall not be prohibited by Section 5.18(a)); (v) selling, distributing, marketing or otherwise providing any products or services of the Sellers or any of their Affiliates in the ordinary course of business to a Person or business engaged in Competing Business (so long as such products or services of the Sellers do not involve, in and of themselves, designing, developing, manufacturing, distributing, marketing or selling concrete and clay building products in North America (excluding the Canadian provinces of Manitoba, Saskatchewan, Alberta and British Columbia) or the United Kingdom); or (vi) complying with the terms of any Ancillary Agreement. (c) The Sellers shall give prompt written notice (and, in any event, within ten (10) Business Days) to the Purchaser in the event that any of the Controlled Affiliates consummates any transaction that would have been prohibited by Section 5.18(a), ST but is permissible under this Section 5.18 because such transaction falls within paragraphs (b)(iii) or (b)(iv) above (an “Excluded Transaction”). Notwithstanding anything to the contrary in this Agreement or any of the Ancillary Agreements, at any time after Seller Parent or any of the Controlled Affiliates consummates any Excluded Transaction, and at any time after Seller Parent or any of the Controlled Affiliates materially breaches Section 5.18(a) (after giving effect to the exceptions set forth in Section 5.18(b)), the Purchaser and its Affiliates shall be permitted to immediately terminate without liability (subject to any firm commitments that have been provided in respect of the purchase of products or deliveries of products then in progress), in their sole discretion and upon no less than (10) Business Days prior written notice: (i) to the extent that any such Excluded Transaction or material breach is in respect of a Competing Business conducted in the United States, the NAM Cement Supply Agreement; and (ii) to the extent that any such Excluded Transaction or material breach is in respect of a Competing Business conducted in the United Kingdom, the UK Aggregates Supply Agreement and the UK Cement Supply Agreement. (d) For a period of two (2) years following the Closing, the Sellers shall not, and shall cause their Affiliates not to, directly or indirectly, solicit or recruit any person who at any time on or after the Closing Date is a Business Group Employee; provided that the foregoing shall not prohibit (i) own, manage, operate, control a general solicitation to the public of general advertising or participate in the ownership, management, operation or control similar methods of any business, whether in corporate, proprietorship or partnership form or otherwise, solicitation by search firms not specifically directed at Business Group Employees or (ii) provide consultative or advice services to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in this Section 7.10(a) shall not restrict the acquisition of a passive investment by ST and the Sellers, directly or indirectly, in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or any of their Affiliates from soliciting, recruiting or hiring any Business Group Employee who has ceased to be employed or retained by a Company or Company Subsidiary. “Business Group Employee” means, collectively, all of the officers, directors and employees of the Companies and the Company Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. Specified Covered Employees (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction as defined in the event of any breach of this Section 7.10 without NAM Transition Services Agreement and the necessity of proving actual damages UK Transition Services Agreement, respectively) that are actually retained by a Company or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damagesCompany Subsidiary. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Purchase Agreement (Forterra, Inc.)

Non-Competition; Non-Solicitation. (a) For a period from of five (5) years commencing on the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "Restricted “Non-Competition Period"), ST and the Sellers shall not, and shall cause not permit any of their controlled Affiliates not to, directly or indirectly, indirectly (i) own, manage, operate, control or participate engage in the ownershipdesign, managementmanufacturing, operation or control marketing, sale and/or distribution of any businessfinished absorbent hygiene products, whether in corporateincluding adult incontinence, proprietorship or partnership form or otherwisefeminine hygiene, and infant, child, and youth products; or (ii) provide consultative have an interest in any Person that engages directly or advice services to any individual or entityindirectly in the design, in either case that is (x) engaged in productionmanufacturing, marketing, sale or and/or distribution of telecommunication services (a "Telecommunications Company")finished absorbent hygiene products, or (y) that otherwise competes with the Businessincluding, in each caseadult incontinence, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business")feminine hygiene, including but not limited to the prepaid wireless business or prepaid calling cardand infant, carrier wholesale child, and dial-around businessyouth products; provided, however, that the restrictions contained in this Section 7.10(aforegoing clauses (i) and (ii) shall not restrict the acquisition Sellers and their Affiliates from designing, manufacturing, marketing, selling and/or distributing absorbent cores for use by third parties as an integral component of a passive investment by ST finished absorbent product, including adult incontinence, feminine hygiene, absorbent hygiene and/or infant diaper products, so long as the finished absorbent product is not marketed using, and does not prominently display, the Sellersname “Domtar”. The foregoing shall not restrict the Sellers and their Affiliates from owning, directly or indirectly, in the aggregate solely as an investment, securities of less than 5% any Person traded on any national securities exchange if none of the outstanding capital stock of any company, whether publicly traded Sellers or privately held, engaged in their Affiliates is a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed bycontrolling Person of, or in any way involved with the Restricted Business a member of a group which controls, such Person and does not providenot, whether directly or indirectly, own 3% or more of any service class of securities of such Person. For the avoidance of doubt, this Section 4.14(a) shall not apply to any transaction or agreement, including the Pulp Supply Agreement and the Air-laid Supply Agreement and the transactions contemplated thereby, between Buyer and its Affiliates (whether as consultantincluding the Transferred Companies and their respective Subsidiaries), advisor or otherwise) to or for on the benefit of one hand, and the Restricted Business or Sellers and their Affiliates, on the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied withother hand. (b) For a period of two (2) years commencing on the Restricted Closing Date (the “Non-Solicit Period”, and together with the Non-Compete Period, the “Restricted Periods”), the Sellers shall not, and ST shall not and permit any of their controlled Affiliates to directly or indirectly, solicit or hire or engage any Business Employee or encourage any Business Employee to leave or diminish his or her employment or other relationship with any of the Subject Companies. The foregoing shall cause not prevent the Sellers or any of their Affiliates not to: from (i) cause, solicit, induce engaging in a general solicitation which is not directed specifically to any Business Employee or encourage independent contractor of any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; Subject Companies or (ii) soliciting or hiring any Business Employee whose employment has been terminated either by such Business Employee or by any Subject Company (without “cause, induce ”) more than six (6) months prior to the date of such solicitation or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshiphiring. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of Sellers acknowledge that a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer breach or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any threatened breach of this Section 7.10 4.14 will give rise to irreparable harm to Buyer, for which monetary damages will not be inadequate. Thereforean adequate remedy, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction and hereby agrees that in the event of a breach or a threatened breach by the Sellers of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and such obligations, Buyer shall, in addition to any and all other rights and remedies which the Buyer or DR Partnership that may have hereunder or at law or be available to it in equity. In the event that the Buyer or DR Partnership were respect of such breach, be entitled to seek damages for equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without having to post bond, together with an award of Buyer’s reasonable attorneys’ fees incurred in enforcing its rights hereunder. The Restricted Periods shall be tolled, and shall not run, during the period of any breach by the Sellers of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damages4.14. (d) The parties hereto agree thatSellers acknowledge that the restrictions contained in this Section 4.14 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 4.14 is adjudicated to exceed the time, if geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 4.14 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of competent any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provision hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature jurisdiction. No breach of any provision of this Agreement shall operate to extinguish each of the Seller’s obligation to comply with this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party4.14.

Appears in 1 contract

Samples: Securities Purchase Agreement (Domtar CORP)

Non-Competition; Non-Solicitation. The Executive and the Company agree to the non-competition and non-solicitation provisions of this Paragraph 10 (i) in consideration for the Confidential Information provided by the Company to the Executive pursuant to Paragraph 9; (ii) as part of the consideration for the benefits to be provided to the Executive hereunder; (iii) to protect the trade secrets and confidential information of the Company or its Affiliates disclosed or entrusted to the Executive by the Company or its Affiliates or created or developed by the Executive for the Company or its Affiliates, the business goodwill of the Company or its Affiliates developed through the efforts of the Executive and/or the business opportunities disclosed or entrusted to the Executive by the Company or its Affiliates; and (iv) as an additional incentive for the Company to enter into this Agreement. (i) Subject to the exceptions set forth in Paragraph 10(b)(ii), the Executive covenants and agrees that during the Prohibited Period (a) For a period the Executive will refrain from carrying on or engaging in, directly or indirectly, any Competing Business in the date hereof until Restricted Area and (b) the later of the fifth anniversary of the Initial Closing Date (the "Restricted Period"), ST and the Sellers shall Executive will not, and shall the Executive will cause their Affiliates the Executive’s affiliates not to, directly or indirectly, (i) own, manage, operate, join, become an employee, partner, owner or member of (or an independent contractor to), control or participate in the ownershipor loan money to, management, operation sell or control of lease equipment to or sell or lease real property to any business, whether individual, partnership, firm, corporation or other entity which engages in corporate, proprietorship or partnership form or otherwise, or a Competing Business in the Restricted Area. (ii) provide consultative or advice services to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that Notwithstanding the restrictions contained in this Section 7.10(a) shall Paragraph 10(b)(i), the Executive or any of the Executive’s affiliates may own an aggregate of not restrict more than 1% of the acquisition outstanding voting securities of any class of an entity engaged in a Competing Business, if such securities are listed on a national securities exchange or regularly traded in the over-the-counter market by a member of a passive investment by ST and national securities exchange, without violating the Sellersprovisions of Paragraph 10(b), provided that neither the Executive nor any of the Executive’s affiliates (A) has the power, directly or indirectly, to control or direct the management or affairs of such entity and (B) is involved in the aggregate management of less than 5% such entity. (iii) The Executive further covenants and agrees that during the Prohibited Period, the Executive will not, and the Executive will cause the Executive’s affiliates not to (A) engage or employ, or solicit or contact with a view to the engagement or employment of, any person who is then currently an officer or employee of the outstanding capital stock Company or any of any company, whether publicly traded its Affiliates or privately held, engaged in a Restricted Business or, the ownership was an officer or employee of the securities Company or any of Restricted Businesses its Affiliates within the prior six months or (B) canvass, solicit, approach or entice away or cause to be canvassed, solicited, approached or enticed away from the Company or any of its Affiliates any person who or which is or was (1) a customer of the Company or any of its Affiliates during the most recent twenty-four months of the Executive’s employment with the Company and (2) with who or which the Executive either had contact or a relationship with or about who or which the Executive developed or acquired Confidential Information during the most recent twenty-four months of the Executive’s employment with the Company. (iv) The Executive may seek the written consent of the Company, which may be withheld for any or no reason, to waive the provisions of this Paragraph 10 on a case-by-case basis. (v) The Executive recognizes that the Executive is a high-level, executive employee who will develop and/or be provided with access to trade secrets as part of the Executive’s employment and that the restrictive covenants set forth in Schedule 7.10 (which amount this Paragraph 10(b) are reasonable and necessary in light of securities the Executive’s position and access to the Company’s trade secrets. The foregoing notwithstanding, the Executive and the Company agree and acknowledge that the Executive shall not be increased without BEI's consent; provided furthersubject to, howeverand the Company shall not have any right to enforce, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST this Paragraph 10 unless the Executive’s Termination Date is not employed by, or in any way involved with after the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit first anniversary of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions Effective Date of this Agreement shall be complied withAgreement. (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damages. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Employment Agreement (Dril-Quip Inc)

Non-Competition; Non-Solicitation. 8.1.1 Each Seller agrees that during the Non-Competition Period (adefined below) For a period from the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "Restricted Period"), ST and the Sellers shall each Seller will not, and shall cause their Affiliates not to, directly or indirectly, (i) own, manage, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in this Section 7.10(a) shall not restrict the acquisition of a passive investment by ST and the Sellers, directly or indirectly, in any capacity, either separately, jointly, or in association with others, as an officer, director, consultant, agent, employee, owner, partner, or stockholder, engage or have a financial interest in any business that offers claims agent services for bankruptcy cases or is involved in the aggregate claims, technology, or administrative services business in the bankruptcy, insolvency, mass tort, class action or asbestos industry or any other business that competes with Buyer's or Company's then current or planned business, determined as of less the date of the termination of employment with Buyer or Company (excepting only the ownership of not more than five percent (5% %) of the outstanding capital stock securities of any companyclass listed on any national securities exchange or the National Association of Securities Dealers, whether publicly traded or privately heldInc. Automated Quotation System) within the United States, engaged in it being agreed that the Business currently operates all across the United States. The "Non-Competition Period" is a Restricted Business orperiod of ten (10) years from the Closing Date. Each Seller further agrees that during the Non-Competition Period each Seller will not, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether either directly or indirectly, in any service (whether as consultantcapacity, advisor either separately, jointly, or otherwise) to in association with others, solicit or otherwise contact any customers or prospects of Buyer or Company if such solicitation or contact is for the benefit purpose of selling products or services that satisfy the same general needs as any products or services that Buyer or Company has available for sale to its customers or prospects. 8.1.2 Each party to this Agreement agrees that during the Non-Competition Period and at all times thereafter each such party will refrain from making any disparaging remarks about any other party hereto, or to the extent applicable, any of such party's officers, directors, employees, agents, representatives, affiliates, products, or services. It is understood and agreed, however, that this section is not intended to limit the right of any party hereto to give nonmalicious and truthful testimony should any party hereto testify or be subpoenaed to give testimony in any proceeding or other action before any Governmental Authority. 8.1.3 Each Seller represents that such Seller's experience and capabilities are such that the provisions hereof will not prevent such Seller from earning a livelihood. It is understood and agreed that in view of the Restricted Business Transactions contemplated by this Agreement and the Ancillary Documents, irreparable injury would befall Buyer, Parent and Company should any one or more of Sellers violate the entity in connection with such Restricted Business; terms of this Article VIII. Each Seller hereby acknowledges that the period of restriction and further provided geographic area of restriction imposed by the confidentiality provisions of this Article VIII are fair and reasonable and are reasonably required for the protection of Buyer, Parent and Company following the Closing Date, and expressly waives any objection to or defense in respect to the geographic area of restriction and/or period of restriction on competition provided for in this Agreement and agrees that said restriction may be enforced by Buyer, Parent or Company following the Closing Date in an action for injunction and/or in an action for monetary damages. In the event that any of the provisions of this Article VIII relating to the geographic area of restriction or the period of restriction shall be complied with. (b) For determined by a court of competent jurisdiction to exceed the Restricted Periodmaximum area or period of time that such court would deem enforceable, the Sellers geographic area of restriction and ST shall not the period of restriction shall, for the purposes of this Article VIII, be reduced to the maximum area or period that such court would deem valid and shall cause their Affiliates not to: (i) cause, solicit, induce enforceable. In the event any party hereto brings an action for monetary or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and injunctive relief based upon a violation of any of the terms of this Section 7.10 will cause irreparable injury Article VIII, then in addition to the Buyer or DR Partnershipwhatever other damages it may recover in connection with such action, if any, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will prevailing party in such action shall be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated be reimbursed by the parties to the foregoing covenant shall not be considered a measure of or limit on non-prevailing party for its costs, including reasonable attorneys fees incurred by it in such damagesaction. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Membership Interest Purchase Agreement (Epiq Systems Inc)

Non-Competition; Non-Solicitation. (a) For a the period from commencing on the date hereof until Closing Date and ending on the later earlier of (i) the fifth anniversary of the Initial Closing Date or (ii) a Newpark Change of Control (the “Restricted Period”) neither Newpark nor any of its Subsidiaries shall, except as permitted by this Section 5.7(a), engage in the business of providing environmental services in the United States (including the States of Alabama, Mississippi and Texas, and each of the Louisiana parishes listed on Schedule 5.7(a)) or the Gulf of Mexico, including any waste management, collection, receiving, transferring, processing or disposal services that are, in any material respect, similar to or competitive with, the Business as being conducted by the Transferred Entities on the Closing Date (the "“Covered Business”). This Section 5.7(a) shall cease to be applicable to any Person at such time as it is no longer an Affiliate or Subsidiary of Newpark. (b) Notwithstanding the provisions of Section 5.7(a), nothing in this Agreement shall preclude, prohibit or restrict Newpark or any of its Affiliates or Subsidiaries from (i) acquiring, owning or holding up to 5% of the outstanding securities of any entity whose securities are listed and traded on a national securities exchange or market or any securities required to be registered under the Securities Exchange Act of 1934; or (ii) engaging in any manner in any business activity that would otherwise violate this Section 5.7 that is acquired from any Person (an “Acquired Business”) or is carried on by any Person that is acquired by or combined with Newpark or a Subsidiary of Newpark at any time during the Restricted Period (an “Acquired Company”); provided, that, if the aggregate consolidated revenues of the Acquired Business or the Acquired Company attributable to the Covered Business for the fiscal year ending prior to the completion of such purchase or acquisition is in excess of 5% of the consolidated revenues of Newpark and its Subsidiaries for the fiscal year ending prior to such purchase or acquisition (the “Divestiture Threshold”), then, as soon as promptly practicable, Newpark or such Subsidiary shall dispose of all or a portion of the Acquired Business or the Acquired Company that comprises the Covered Business so that the aggregate consolidated revenues for the fiscal year ending prior to the completion of such purchase or acquisition of the remaining portion of the Acquired Business or the Acquired Company that comprises the Covered Business shall be less than the Divestiture Threshold. (c) During the Restricted Period"), ST and the Sellers shall not, and shall cause their Affiliates not toneither Newpark nor any of its Subsidiaries shall, directly or indirectly, (i) own, manage, operate, control solicit for employment or participate in employ any of the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, individuals listed on Schedule 5.7(c) or (ii) provide consultative solicit for employment or advice services to employ any individual or entity, in either case that is Transferred Employee (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"other than the individuals listed on Schedule 5.7(c), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that this clause (ii) shall not prohibit Newpark or any of its Subsidiaries from making general solicitations not specifically targeted at any Transferred Employees or from employing persons (other than the individuals listed on Schedule 5.7(c)) who respond to such general solicitations, or from employing or hiring any person (other than the individuals listed on Schedule 5.7(c)) who initiates discussions regarding employment without any solicitation by Newpark or any of its Subsidiaries. (d) During the Restricted Period, neither Newpark nor any of its Subsidiaries shall, directly or indirectly, (i) influence or attempt to influence any customers, distributors or suppliers of any of the Transferred Entities to divert their business to any competitor of the Transferred Entities or in any way interfere with the relationship between any such customer, distributor or supplier and the Transferred Entities (including any senior management member of Newpark or any of its Subsidiaries making any disparaging or negative statements or communications about the Transferred Entities), or (ii) take any action that is designed or intended to have the effect of discouraging any lessor, licensor, or other business associate of any of Transferred Entities from maintaining the same business relationships with the Transferred Entities after the Closing as it maintained with the Transferred Entities prior to the Closing. (e) Each Newpark Entity agrees and acknowledges that: (i) the provisions of this Section 5.7 do not impose a greater restraint than is necessary to protect the goodwill, Confidential Information or other business interests of the Transferred Entities; (ii) such provisions contain reasonable limitations as to time, geographical area and scope of activity to be restrained; (iii) the consideration provided under this Agreement, including any amounts or benefits provided under ARTICLE II, is sufficient to compensate such Newpark Entity for the restrictions contained in this Section 7.10(a5.7; and (iv) shall not restrict in any Legal Proceeding that may arise out of or relate to the acquisition provisions of a passive investment by ST and the Sellers, directly or indirectly, in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business orthis Section 5.7, the ownership Newpark Entities will have the burden of proving that the securities of Restricted Businesses non-competition covenants contained herein do not meet the criteria set forth in Schedule 7.10 (which amount of securities shall Texas Business and Commerce Code § 15.50 et seq. Each Newpark Entity agrees that it will not assert that, and it should not be increased without BEI's consent; provided furtherconsidered that, howeverany provision of this Section 5.7 is otherwise void, ST may voidable or unenforceable or should be employed by voided or held unenforceable. It is the intention of the Parties that, if any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% court, arbitrator or tribunal construes any provision or clause of this Section 5.7 to be illegal, void or unenforceable because of the duration of such entity's consolidated income provision or consolidated assets) in a Restricted Business so long as ST is not employed bythe area or subject matter covered thereby, such court, arbitrator or tribunal shall reduce the duration, area, or subject matter of such provision, and, in any way involved with the Restricted Business its reduced form, such provision shall then be enforceable and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied withenforced. (bf) For the Restricted Period, the Sellers Each Newpark Entity agrees and ST shall not and shall cause their Affiliates not to: acknowledges that (i) cause, solicit, induce or encourage any Employees breach by it of any of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The covenants and undertakings provisions contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will 5.7 would cause irreparable injury damage to Buyer and the Buyer or DR Partnership, the amount of Transferred Entities for which will be impossible to estimate or determine monetary damages and which canother remedies at law may not be adequately compensated. Accordinglyadequate, and (ii) Buyer and the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership Transferred Entities will be entitled to seek a restraining order, an injunction, restraining order specific performance, or other form of equitable or extraordinary relief from any court of competent jurisdiction in the event of to restrain any threatened or further breach of this Section 7.10 without 5.7 or to require such Newpark Entity to perform its obligations under this Section 5.7, which right to equitable or extraordinary relief will not be exclusive of, but will be in addition to, all other remedies to which Buyer and the necessity of proving actual damages Transferred Entities may be entitled under this Agreement, at law, or posting any bond whatsoeverin equity (including, the right to recover monetary damages). The rights and remedies provided by agreement of each Newpark Entity contained in this Section 7.10 are cumulative 5.7 is given as an inducement to, and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion as part of the Purchase Price which is allocated by consideration for, Buyer’s purchase of the parties to the foregoing covenant shall not be considered a measure of or limit on such damagesAcquired Interests under this Agreement. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Membership Interests Purchase Agreement (Newpark Resources Inc)

Non-Competition; Non-Solicitation. (a) For Seller agrees that during the period beginning on the Closing Date and ending on the third anniversary of the Closing Date it will not, and it will not permit any of its Subsidiaries to: (i)control (within the meaning of the BHC Act, including the rules and regulations promulgated thereunder, or any successor provision) any insured depositary institution with its headquarters located within Puerto Rico, (ii)open or operate a period from branch of Seller, or of any Subsidiary of Seller, in Puerto Rico that engages in banking, insurance or broker-dealer activities or (iii)actively market banking, securities brokerage or insurance products and services to Persons in Puerto Rico (other than (A) as a result of worldwide or region wide general media advertising not aimed primarily at Persons in Puerto Rico, (B) to any Person or any of its Affiliates to whom Seller or any of its Affiliates has provided products or services prior to the date hereof until and (C) to any Person or any of its Affiliates to whom Seller or any of its Affiliates first provides products or services after the later of date hereof so long as the fifth anniversary of marketing in connection with the Initial Closing Date first products and services provided was not primarily directed to providing products and services in Puerto Rico) (the "Restricted Period"activities referenced in clauses (i), ST and the Sellers shall not, and shall cause their Affiliates not to, directly or indirectly, (i) own, manage, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, in either case that is and (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"iii), the “Prohibited Activities”); provided that nothing herein will prevent Seller or any of its Subsidiaries from acquiring, and thereafter owning, any entity or business (ysuch entity or business, the “Acquired Business”) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in this Section 7.10(a) shall not restrict the acquisition of a passive investment by ST and the Sellers, directly or indirectlyindirectly engages in any of the Prohibited Activities so long as, in at the aggregate time of the acquisition, the Prohibited Activities account for less than 520% of the outstanding capital stock value (as determined in good faith by the board of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership directors of Seller) of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Acquired Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For Seller agrees that during the Restricted Period, period beginning on the Sellers Closing Date and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees ending on the first anniversary of the Buyer or DR Partnership to leave such Closing Date it will not, and it will not permit any of its Subsidiaries to, solicit for employment or hire, employ any person who was in a senior vice president or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship more senior position with the Business, to terminate or modify any such actual or prospective relationship. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury Companies on the Closing Date; provided that (i)the foregoing shall not apply to the Buyer or DR PartnershipExcepted Employees, (ii)nothing herein shall apply to any person who has left the amount employment of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any Companies other than as a result of a breach of this Section 7.10 will be inadequateprovision and (iii)the non-solicitation restrictions of this paragraph shall not apply to any general solicitations for employment, such as any newspaper or Internet help wanted advertisement, or any search firm engagement which, in any such case, is not directed or focused on personnel employed by the Companies. ThereforeAs used herein, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction term “Excepted Employees” means the persons set forth in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion 7.06(b) of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damagesSeller Disclosure Schedules. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Subscription Agreement (Oriental Financial Group Inc)

Non-Competition; Non-Solicitation. (a) For Each of the parties acknowledges that the covenants and agreements in this Section 7.9 are conditions precedent to Purchaser’s obligations to consummate the transactions contemplated by this Agreement and the other Ancillary Agreements, and that Purchaser would not enter into the transactions contemplated by this Agreement and the other Ancillary Agreements but for the agreements of Sellers with Purchaser in this Section 7.9. Sellers acknowledges that from and after the Closing Date, Purchaser and its Affiliates will sell Products to customers located in markets throughout the Territory and that engagement by a Seller in the activities restricted by this Section 7.9 during the applicable periods anywhere in the Territory other than for the benefit of Purchaser or any of its Affiliates could cause Purchaser or any of its Affiliates irreparable damage. (b) Subject to the provisions of this Section 7.9, each Seller agrees that for a period of five (5) years from the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "Restricted Period")Date, ST and the Sellers shall notneither it nor any Specified Employee or Affiliates, and shall cause their Affiliates not toas a director, officer, employee, investor, lender, consultant or in any other capacity, shall, directly or indirectlyindirectly (A) engage (including as a director, (iofficer, employee, investor, lender, consultant or in any other capacity with respect to an entity that engages in whole or in part) own, manage, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, in either case business that is (x) engaged in production, sale substantially similar to the Business or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, or develops, manufactures, markets or sells any product that is or would be competitive with, or a substitute for, or includes features, functionality, structure or architecture substantially similar to, any of the Products, anywhere in each casethe Territory, (B) hire, including as a director, officer, employee, investor, lender, consultant or in any other capacity, any current employee of a Seller other than such employees who are not offered employment by Purchaser or whose employment with Purchaser has been terminated by Purchaser for reasons other than the conduct of the employee consisting of: (i) improper performance or nonperformance of the employee’s duties and responsibilities that is not cured within a reasonable time after written notice from Purchaser, (ii) engaging in willful misconduct, including fraud or intentional misrepresentation, (iii) engaging in dishonest activity or conviction of, or pleading guilty or nolo contendere to, any felony or a misdemeanor involving fraud, deceit, moral turpitude or unethical business actually conducted conduct, (iv) habitual alcohol or about drug abuse that continues after written notice from Purchaser, which abuse has (a) had an adverse effect on such employee’s productivity or ability to be conducted during carry out his duties to Purchaser, (b) jeopardized the Restricted Period safety of any other employee of Purchaser or any person having business relations with Purchaser, (c) damaged the reputation of Purchaser, or (d) endangered Purchaser’s ability to compete for business, (v) material breach of the terms of such employee’s employment agreement with Purchaser, policies or the code of conduct or regulations promulgated by the Board of Directors of Purchaser, or any invention assignment, confidentiality, non-solicitation or non-competition agreement to which such employee is a "Restricted Business"party, which breach is not cured within a reasonable time after written notice from Purchaser, or (vi) the commission of any other act materially detrimental to the business or reputation of Purchaser (each of the foregoing clauses (i) through (vi), including but not limited “Cause”), (C) induce or attempt to induce, any director, officer, employee, representative or agent of Purchaser or any of its Affiliates engaged in the prepaid wireless business manufacture, storage, distribution or prepaid calling cardsale of the Products to leave the employ of Purchaser or any such Affiliate, carrier wholesale and dial-around businessor violate the terms of their contracts, or any employment arrangements, with Purchaser or any such Affiliate, or (D) solicit or divert or attempt to solicit or divert any current or former customer of a Seller; provided, however, that it shall not be deemed to be a violation of this subsection (b) for Sellers and their Affiliates to invest in securities having less than one percent (1%) of the outstanding voting power of the entity set forth on Schedule 7.9(b) and any Person, the securities of which are publicly traded or listed on any securities exchange or automated quotation system; provided, further, that in the event a Specified Employee is terminated by Purchaser without Cause, the restrictions contained set forth in this Section 7.10(a7.9(b)(A) with respect to such Specified Employee shall cease after a period of one (1) year from the date of such termination or five (5) years after the date of Closing whichever is earlier (so long as Purchaser shall have made the payment required to be made pursuant to Section 3.1(c) of this Agreement and, if Purchaser shall not restrict have made such payment, such restrictions shall cease after a period of six (6) months from the acquisition date of a passive investment by ST and such termination or five (5) years after the Sellers, directly or indirectly, in date of Closing whichever is earlier); provided further that the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses restrictions set forth in Schedule 7.10 Section 7.9(b)(A) shall terminate immediately with respect to a Specified Employee if Purchaser fails to make any required severance payments payable to such Specified Employee within thirty (which amount of securities 30) days after written notice that such severance payment obligation has arisen and not been paid. (c) Sellers and Purchaser acknowledge that this Section 7.9 constitutes an independent covenant and shall not be increased without BEI's consent; provided furtheraffected by performance or nonperformance of any other provision of this Agreement. Each Sellers and Purchaser has independently consulted with its counsel and after such consultation agrees that the covenants set forth in this Section 7.9 are reasonable and proper. It is the desire and intent of the parties that the provisions of this Section 7.9 shall be enforced to the fullest extent permissible under applicable Law. If all or part of this Section 7.9 is held invalid, however, ST may be employed illegal or incapable of being enforced by any entity Law or public policy, all other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business terms and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted Period, the Sellers nevertheless remain in full force and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees effect. Each of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person parties agrees that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any a breach by a party of the provisions of this Section 7.10 7.9, money damages would not be an adequate remedy and that the other party shall be entitled to seek temporary, preliminary or permanent injunctive relief without the necessity of proving actual damages or posting a bond. If any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach part of this Section 7.107.9 is held to be excessively broad as to duration, the portion of the Purchase Price which is allocated scope, activity or subject, such part will be construed by the parties limiting and reducing it so as to be enforceable to the foregoing covenant shall not be considered a measure of or limit on such damagesmaximum extent compatible with applicable Law. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Asset Purchase Agreement (Cicero Inc)

Non-Competition; Non-Solicitation. Executive and Company agree to the non-competition and non-solicitation provisions of this Article VIII (i) as part of the consideration for the compensation and benefits to be paid to Executive hereunder, (ii) to protect the trade secrets and confidential information of Company or its affiliates disclosed or entrusted to Executive by Company or its affiliates or created or developed by Executive for Company or its affiliates, the business goodwill of Company or its affiliates developed through the efforts of Executive and/or the business opportunities disclosed or entrusted to Executive by Company or its affiliates and (iii) as an additional incentive for Company to enter into this Agreement. (a) For a period Subject to the exceptions set forth in section 8.2(b) below, Executive expressly covenants and agrees that during the Prohibited Period, (i) he will refrain from carrying on or engaging in, directly or indirectly, any Competing Business in the date hereof until the later of the fifth anniversary of the Initial Closing Date Restricted Area and (the "Restricted Period"), ST and the Sellers shall ii) he will not, and shall he will cause their Affiliates his affiliates not to, directly or indirectly, (i) own, manage, operate, join, become an employee of, control or participate in the ownershipor be connected with or loan money to, management, operation sell or control of lease equipment to or sell or lease real property to any business, whether individual, partnership, firm, corporation or other entity which engages in corporate, proprietorship or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, a Competing Business in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period Area. (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that b) Notwithstanding the restrictions contained in this Section 7.10(a) shall 8.2(a), Executive or any of his affiliates may own an aggregate of not restrict more than 2.5% of the acquisition outstanding stock of any class of any corporation engaged in a Competing Business, if such stock is listed on a national securities exchange or regularly traded in the over-the-counter market by a member of a passive investment by ST and national securities exchange, without violating the Sellersprovisions of Section 8.2(a), provided that neither Executive nor any of his affiliates has the power, directly or indirectly, to control or direct the management or affairs of any such corporation and is not involved in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% management of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshipcorporation. (c) The Executive further expressly covenants and undertakings contained in this Section 7.10 relate agrees that during the Prohibited Period, he will not, and he will cause his affiliates not to matters (i) engage or employ, or solicit or contact with a view to the engagement or employment of, any person who is an officer or employee of Company or its affiliates or (ii) canvass, solicit, approach or entice away or cause to be canvassed, solicited, approached or enticed away from Company or its subsidiaries any person who or which are of is a special, unique and extraordinary character and a violation customer of any of such entities during the terms period during which Executive is employed by Company. Notwithstanding the foregoing, the restrictions of clause (i) of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant 8.2(c) shall not be considered apply with respect to (A) an officer or employee whose employment has been involuntarily terminated by his or her employer (other than for cause), (B) an officer or employee who has voluntarily terminated employment with Company and its affiliates and who has not been employed by any of such entities for at least one year, (C) an employee who is paid on an hourly basis, or (D) an officer or employee who responds to a measure general solicitation that is not specifically directed at officers and employees of Company or limit on such damagesits affiliates. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Employment Agreement (Complete Production Services, Inc.)

Non-Competition; Non-Solicitation. (a) For In consideration of the benefits of Seller hereunder and in order to induce Buyer and SmarTalk to enter into this Agreement, Seller will not, for a period of two (2) years from the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "Restricted Non- Competition Period"), ST and the Sellers shall not, and shall cause their Affiliates not toexcept as set forth in Section 6.1(b) hereof, directly or indirectlyindirectly engage in or hold an interest in any business (whether by ownership of debt or equity or otherwise managing, (ioperating, controlling, directing or participating in such business) own, manage, operate, control providing prepaid long distance phone card products or participate services to retailers and other non-wholesale customers of the kind whose arrangements with Seller would if existing as of the date hereof constitute Customer Contracts or Pending Contracts hereunder in competition with Buyer and SmarTalk anywhere in the ownershipworld (collectively, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a the "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Proscribed Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained nothing in this Section 7.10(a6.1(a) shall shall: (A) prohibit any company or other entity (including, without limitation, any joint venture) that has been acquired, in whole or in part, by, or otherwise engaged in a business combination with, Seller or any of its affiliates from engaging in or holding an interest in a Proscribed Business if (i) the gross sales generated by such Proscribed Business in the latest financial statements of such company or other entity at the time of such acquisition constitutes no more than fifteen percent (15%) of such acquired company's or other entity's gross sales for such year; PROVIDED that the gross sales generated by such Proscribed Business does not restrict the acquisition constitute more than fifteen percent (15%) of a passive investment by ST and the Sellers, directly such acquired company's or indirectlyother entity's gross sales for each fiscal year (or, in the aggregate case of less than 5% a fiscal year ending after the Non-Competition Period, each fiscal quarter) ending during the balance of the outstanding Non-Competition Period and (ii) such company or other entity does not engage in business with any of the Key Customers in competition with Buyer and SmarTalk; (B) prohibit Seller or any of its affiliates from acquiring shares of capital stock of stock, partnership or other equity interests in any companycompany or other entity (including, whether publicly traded or privately heldwithout limitation, any joint venture) that is engaged in a Restricted Business orProscribed Business, the ownership provided that such acquired interest does not represent more than five percent (5%) of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% total equity of such entity's consolidated income ; (C) prohibit Seller or consolidated assets) in a Restricted Business so long as ST is not employed by, or any of its affiliates from engaging in any way involved joint marketing, promotion or merchandising programs of Seller's integrated telecommunications package (including, without limitation, the provision of products or services under the name and marks "Frontier" or "Rochester Telephone") with respect to any Proscribed Business for which the Restricted Business prepaid phone card products or services are not produced or provided by Seller or its affiliates or are requested on an unsolicited basis by then existing customers of Seller and does not provideits affiliates to whom Seller or its affiliates are providing at least one another service in Seller's core telecommunications package, whether directly PROVIDED that with respect to any new customers, Seller shall use its reasonable best efforts to grant Buyer or indirectly, any service SmarTalk a right of first refusal (whether as consultant, advisor or otherwisedescribed below in this Section 6.1(a)) to or for the benefit of the Restricted Business or the entity provide platform services in connection with such Restricted Businessproducts and services at comparable levels of service and service quality and comparable prices to those available from other reputable producers or providers of prepaid phone card products or services (other than Seller and its affiliates); (D) prohibit Seller or any of its affiliates from conducting any activities related to the Excluded Assets; (E) prohibit Seller or any of its affiliates from engaging in a business combination with any company or other entity engaged in or holding an interest in a Proscribed Business if, following the consummation of such business combination, the common shareholders of Seller immediately prior to such business combination represent less than a majority of the common equity interest of the combined company or other entity; and (F) prohibit Seller or any of its affiliates from engaging in or holding an interest in any business (whether by ownership of debt of equity or otherwise managing, operating, controlling, directing or participating in such business) providing phone card products or services other than prepaid long distance products and further provided services to retailers and other non-wholesale customers of the confidentiality kind whose arrangements with Seller would if existing as of the date hereof constitute Customer Contracts or Pending Contracts hereunder in competition with Buyer and SmarTalk (including, without limitation, the wholesale prepaid calling card business, the non-prepaid calling card business, the wireless prepaid calling card business, any activities of LinkUSA Corporation and the wholesale or other transport of messages originated using the prepaid cards of other carriers). Notwithstanding anything to the contrary contained in clauses (A), (C), (D) or (F) above, during the Non-Competition Period Seller shall not provide prepaid long distance phone card products or services through retail establishments anywhere in the world. Seller acknowledges and agrees that the geographic scope of the non-competition provisions of this Agreement Section 6.1(a) shall not be limited and that such geographic scope is reasonable. In connection with any right of first refusal granted to Buyer or SmarTalk described to clause (C) above, Seller shall provide Buyer with a written summary of a bona fide offer requesting platform services and Seller shall use its reasonable best efforts to grant Buyer and SmarTalk fifteen (15) calendar days to accept such offer or reject the same in writing. A failure by Buyer and SmarTalk timely to respond to such offer shall be complied withdeemed a rejection of the offer. (b) For Seller shall be deemed not to have breached the Restricted Periodcovenants in Section 6.1(a) by the act of acquiring any business during the Non-Competition Period if, the Sellers and ST shall not and shall cause their Affiliates not to: upon such acquisition by Seller or any of its affiliates, Seller or such affiliate (i) cause, solicit, induce uses its best efforts to divest or encourage any Employees dispose as promptly as practicable on commercially reasonable terms that portion of the Buyer or DR Partnership acquired business giving rise to leave such employment or hire, employ or otherwise engage any such individual; alleged breach under Section 6.1(a) or (ii) cause, induce to the extent that Seller or encourage any material actual or prospective client, customer, supplier or licensor of its affiliates acquires a business engaged in business with any of the Business (including any existing Key Customers in competition with Buyer or former customer which provides prepaid long distance phone card products or services through retail establishments in competition with Buyer, the activities of Seller or such affiliate in respect of such Key Customer or such products or services are related solely to the satisfaction or fulfillment of the Sellers liabilities and obligations of such business to such Key Customer or the Subsidiaries and any Person that becomes a client or customer in respect of such retail establishments as of the Business after the Initial Closing) date of such acquisition; and neither Buyer nor SmarTalk will commence, or if commenced they will immediately discontinue, any other Person who has a material business relationship efforts to enforce such covenants with the Businessrespect to such acquisition by suit, to terminate petition for injunction or modify any otherwise so long as such actual divestiture or prospective relationshipdisposal is being pursed in good faith by Seller or it affiliates. (c) The covenants Seller shall use its reasonable best efforts to refer to Buyer any and undertakings contained in this all sales leads received by Seller during the Non-Competition Period with respect to prepaid phone card products or services prohibited to Seller pursuant to Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damages6.1(a) hereof. (d) The parties hereto agree thatSeller covenants and agrees that Seller, if for a period of the greater of (A) three (3) years from the Closing Date or (B) the period during which Seller continues to provide a significant level of telecommunications carrier services to Buyer and SmarTalk, taken as a whole, Seller will not, directly or through employees, agents, or others; offer, promise, provide or guarantee employment, or solicit or otherwise seek to influence any court person to leave Buyer or SmarTalk, or who has been in such an employment or independent contractor relationship within the twelve (12) months prior to such contact(s), or solicit from, convert, attempt to convert, divert business from, or attempt to divert business from any of competent jurisdiction the customers of Buyer or SmarTalk in a final nonappealable judgment determines that a specified time periodthe retail Prepaid Calling Card Business, a specified geographical area, a specified business limitation whether or any other relevant feature of this Section 7.10 not such activity is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable partysuccessful.

Appears in 1 contract

Samples: Asset Purchase Agreement (Smartalk Teleservices Inc)

Non-Competition; Non-Solicitation. (a) Each of the Sellers acknowledges that (v) the Transferred Companies are engaged in the business of manufacturing and marketing vinyl siding, windows, patio doors, fencing, railing and decking for the residential repair/remodeling and new construction markets (the "TRANSFERRED COMPANY BUSINESS"); (w) the Company Business is conducted throughout the United States of America and Canada; (x) its ownership until the Closing Date of the Transferred Companies has given it trade secrets of and confidential information concerning the Transferred Companies; (y) the agreements and covenants contained in this Section 6.19 are essential to protect the business and goodwill of the Transferred Companies; and (z) the Buyer would not purchase the Shares but for such agreements and covenants. Accordingly, each covenants and agrees as follows: (i) For a period from of two (2) years commencing on the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "Restricted PeriodRESTRICTED PERIOD"), ST and no Seller shall, in the Sellers shall not, and shall cause their Affiliates not toUnited States of America or in Canada, directly or indirectly, (iA) own, manage, operate, control or participate engage in the ownershipTransferred Company Business for such Seller's own account; (B) except as agreed to in writing by the Buyer and such Seller, management, operation or control of render any business, whether in corporate, proprietorship or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, in either case that is (x) Person engaged in production, sale the Transferred Company Business or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes for use in competing with the Transferred Company Business, ; (C) have an interest in each caseany Person engaged in the Transferred Company Business in any capacity, including any business actually conducted as a partner, shareholder, member, employee, principal, agent, trustee or about to be conducted during the Restricted Period (consultant; PROVIDED, HOWEVER, a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in this Section 7.10(a) shall not restrict the acquisition of a passive investment by ST and the SellersSeller may own, directly or indirectly, in the aggregate of less than 5% of the outstanding capital stock solely as an investment, securities of any company, whether publicly Person traded or privately held, engaged in a Restricted Business or, the ownership of the on any national securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of exchange if such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST Seller is not employed bya controlling Person of, or in any way involved with the Restricted Business a member of a group which controls, such Person and does not providenot, whether directly or indirectly, own 5% or more of any service class of securities of such Person; or (D) interfere in any material respects with business relationships (whether as consultant, advisor or otherwise) formed prior to or for after the benefit date of this Agreement) between any Transferred Company and customers or suppliers of any Transferred Company; and (ii) Without the prior written consent of the Buyer, during the Restricted Business Period, no Seller shall, directly or indirectly, hire or solicit any employee of any Transferred Company or encourage any such employee to leave such employment or hire any such employee who has left such employment within one (1) year of the entity in connection with termination of such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied withemployment, except pursuant to a general solicitation which is not directed specifically to any such employees. (b) For If any Seller breaches, or threatens to commit a breach of, any of the Restricted Periodprovisions of Section 6.19, each of the Sellers Buyer and ST each Transferred Company shall have the following rights and remedies, each of which rights and remedies shall be independent of the others and severally enforceable, and each of which is in addition to, and not in lieu of, any other rights and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage remedies available to any Employees of the Buyer or DR Partnership any Transferred Company under law or in equity: (i) The right and remedy to leave have such employment or hireprovision specifically enforced by any court having equity jurisdiction, employ or otherwise engage it being acknowledged and agreed that any such individualbreach or threatened breach will cause irreparable injury to each of the Buyer and each Transferred Company and that money damages would not provide an adequate remedy to the Buyer or any Transferred Company; or and (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of The right and remedy to require each Seller to account for and pay over to the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) Buyer or any Transferred Company, as the case may be, all compensation, profits, monies, accruals, increments or other Person who has benefits derived or received by such Seller as the result of any transactions constituting a material business relationship with the Business, to terminate or modify any breach of such actual or prospective relationshipprovision. (c) The covenants Each Seller acknowledges and undertakings contained in this Section 7.10 relate agrees that as to matters which are of a special, unique and extraordinary character and a violation of any of it the terms provisions of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine 6.19 are reasonable and which cannot be adequately compensatedvalid in geographical and temporal scope and in all other respects. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from If any court of competent jurisdiction in the event determines that all or any part of any breach of this Section 7.10 without 6.19 is invalid or unenforceable as to one or more of the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which Sellers, the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach remainder of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant 6.19 shall not be considered a measure of affected and shall be given full effect as to the Sellers or limit on such damagesSeller, without regard to the invalid portions. (d) The parties hereto agree that, if If any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation all or any other relevant feature part of this Section 7.10 6.19 is unreasonableunenforceable as to one or more of the Sellers, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court shall have the power to reduce the scope of this Section 6.19, as to the Sellers or such Seller, and, in its reduced form, such provision shall then be reasonableenforceable. (e) The Buyer and each Seller intend to and confer jurisdiction to enforce the provisions of this Section 6.19 upon the courts of any jurisdiction within the geographical scope specified in Section 6.19(a). If the courts of any one or more of such jurisdictions hold the provisions of this Section 6.19 unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the Buyer and each Seller that such determination not arbitrary bar or in any way affect the right of the Buyer or any Transferred Company to the relief provided above in the courts of any other jurisdiction within the geographical scope specified in Section 6.19(a), as to breaches of the provisions of this Section 6.19 in such other respective jurisdictions, the provisions of this Section 6.19 as they relate to each jurisdiction being, for this purpose, severable into diverse and not against public policy may be enforced against the applicable partyindependent covenants.

Appears in 1 contract

Samples: Stock Purchase Agreement (Ply Gem Industries Inc)

Non-Competition; Non-Solicitation. (a) For a period from beginning on the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "Restricted Period")“Commencement Date”) until the date which is twenty-four (24) months after the Commencement Date, ST and the Sellers shall each Seller will not, and shall will cause their its respective members and Affiliates not to, directly or indirectly, (i) own, acquire, manage, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, that is engaged in, or (ii) provide consultative otherwise competes with, the businesses of Buyer or advice services BERMASE, as presently conducted or proposed to be conducted, anywhere where BERMASE’s or Buyer’s business is presently conducted or presently proposed to be conducted. The parties hereto specifically acknowledge and agree that the remedy at law for any breach of the foregoing may be inadequate and that Buyer, in addition to any individual other relief available to it, will be entitled to seek temporary and permanent injunctive relief without the necessity of proving actual damage or entityposting any bond whatsoever. Nothing herein contained shall be deemed to prohibit any Seller or any of their respective members and Affiliates from investing funds, solely on a passive basis, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in this Section 7.10(a) shall not restrict the acquisition securities of a passive investment by ST corporation or partnership, regardless of its business, if the securities of such corporation or partnership are listed for trading on a national stock exchange or are traded in the over-the-counter market and the Sellers, directly holdings of any Seller or indirectly, in the aggregate any of their respective members and Affiliates therein represent less than 5% of the outstanding capital stock total number of any company, whether publicly traded shares or privately held, engaged in a Restricted Business or, the ownership principal amount of the other securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income corporation or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied withpartnership outstanding. (b) For a period beginning on the Restricted PeriodCommencement Date until the date which is twenty-four (24) months after the Commencement Date, the Sellers each Seller will not, and ST shall not will cause its respective directors, officers, employees, members and shall cause their Affiliates not to: , without the written consent of Buyer, directly or indirectly, for its own account or on behalf of any other Person, (i) causehire any person who is then an employee of Buyer or any of its Affiliates (including BERMASE), solicit, or induce or encourage attempt to induce any Employees of the employee to leave his or her employment with Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individualof its Affiliates (including BERMASE); or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business businesses of Buyer or BERMASE, as presently conducted or presently proposed to be conducted, (including any existing or former customer of the Sellers BERMASE, Buyer or the Subsidiaries and any Person that becomes a client or customer of the Business business of Buyer or BERMASE after the Initial Closing) or any other Person who has a material business relationship with the Businessbusiness of Buyer or BERMASE, to terminate or modify any such actual or prospective relationship. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damages. (d) The parties Parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 5.3 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Equity Contribution Agreement (Global Pari-Mutuel Services, Inc.)

Non-Competition; Non-Solicitation. Each of the Sellers hereby acknowledges that: (i) in addition to disposing of such Seller’s beneficial ownership interest in the Company as set forth in this Agreement, such Seller is selling all the goodwill of the Company associated with or attributable to the Contributed Interests; (ii) such Seller has contributed to the development of the goodwill of the Company; and (iii) the parties hereto have agreed upon the consideration for the Contributed Interests to specifically include and reflect such sale of goodwill. In consideration of the sale of such Seller’s beneficial ownership in the Company, including the sale of all goodwill, and the Purchaser’s agreement to issue to such Seller such Seller’s allocation of Xxxxxx Interests (subject to the terms and conditions set forth herein), such Seller agrees that: (a) For a Except as provided in this Section 7.07, during the period from commencing at the date hereof until Closing and up to and through the later earlier of (x) the fifth fourth (4th) anniversary of the Initial Closing Date (the "Restricted Period"), ST and the Sellers shall not, and shall cause their Affiliates not to, directly or indirectly, (i) own, manage, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) such date that otherwise competes with is three (3) years after the Business, in each case, including any business actually conducted or about to be conducted during termination of such party’s applicable Consulting Agreement (the Restricted Period (a "Restricted Business"Period”), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in this Section 7.10(a) shall not restrict the acquisition of a passive investment by ST and the Sellers, directly or indirectly, in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provideneither BLP nor Xxxxx Xxxxxxxx, whether directly or indirectly, shall for itself or himself, on behalf of or in conjunction with any service other Person in any capacity (as a principal, equity holder, joint-venturer, partner, director, officer, agent, executive, consultant, contractor, employee, lender or otherwise), and such party shall cause such party’s respective Affiliates not to (whether as or not for pecuniary benefit) (collectively, the “Covenanting Party”): (i) induce, solicit, hire, recruit or attempt to persuade any Person to terminate such Person’s employment or other relationship with the Company or any of its Affiliates (collectively, “Company Parties”) or not to establish an employment or other relationship with any Company Party, whether or not such Person is or would be an employee, consultant, advisor contractor, manager, director, officer and/or employee, whether or not such relationship is or would be pursuant to a written or oral agreement and whether or not such relationship is for a specific period of time or is at-will, other than through general solicitations published or otherwise distributed to the public at large, not targeting nor delivered directly to, or for the ultimate receipt by, any Company Party; (ii) employ or establish a business relationship with (or attempt to employ or establish a business relationship with), or encourage or assist any Person to employ or establish a business relationship with, any individual who is, was at any time within the six (6) month period prior to the date hereof, or will be at any time during the Restricted Period, an employee, consultant, contractor, manager, officer, director or employee of any Company Party other than through general solicitations published or otherwise distributed to the public at large, not targeting nor delivered directly to, or for the ultimate receipt by, any Company Party; (iii) direct or engage in any act which may interfere with or materially and adversely affect, alter or change the relationship (contractual or otherwise) of any Company Party with any Person that is a Client, Prospective Client, vendor, supplier or contractor of any Company Party, or otherwise induce or attempt to induce any such Person to cease doing business, reduce or for otherwise limit its business with any Company Party, in each case, to the benefit extent such Covenanting Party has Knowledge of any such Client, Prospective Client, vendor, supplier or contractor and their relationship or interactions with any Company Party; (iv) solicit business from any Client or Prospective Client, or do business with any Client or Prospective Client, involving the Restricted Business or any business that is directly competitive with the entity in connection with such Restricted Business; and further provided or (v) engage or participate in, manage, operate, be employed by, consult with, advise, or be financially interested in, any Person engaged in the confidentiality provisions Business anywhere where the Company transacts the Business during the three (3) year period immediately prior to the Closing Date (provided, however, that nothing contained in this ‎Section 7.07 shall prevent the holding for passive investment of this Agreement shall be complied withless than five percent (5%) of any class of equity securities of a company whose securities are publicly traded on a national securities exchange or in a national market system). (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms purposes of this Section 7.10 will cause irreparable injury ‎Section 7.07, “Client” means a Person for whom or which any Company Party performed services or to whom or which any Company Party sold or licensed its products, during the Buyer or DR Partnership, prior twelve (12) months. “Prospective Client” means Persons whose business was solicited by any Company Party during the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damagesprior twelve (12) months. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Contribution Agreement (Greenlane Holdings, Inc.)

Non-Competition; Non-Solicitation. (a) For a period from of 2 (two) years after the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "Restricted ---------- Period"), ST and the Sellers Seller shall not, and shall will cause their Affiliates all members of Seller Group not to, directly or indirectly, (i) own, manage, operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, or (ii) provide consultative or advice services to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in this Section 7.10(a) shall not restrict the acquisition of a passive investment by ST and the Sellersengage, directly or indirectly, in any business that develops, manufactures or markets the aggregate Products (the "Competing Service") in any country or territory in ------------------ the world (the "Territory"); provided that, the foregoing shall not prohibit --------- -------- ---- Seller or members of less Seller Group from (i) acquiring, directly or indirectly, securities listed on any securities exchange or market system or traded actively in any recognized over-the-counter market of any Person that provides the Competing Service in the Territory, provided that Seller and its Affiliates do not, in the aggregate, own directly or indirectly more than 5% of the outstanding voting power or capital stock of such Person; (ii) undertaking a Competing Service with respect to any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 Products after such time as Purchaser no longer carries on the Competing Service with respect to such Product; (which amount of securities shall iii) acquiring a company or a business having not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than five per cent (5% %) of such entity's consolidated income its gross turnover in its last fiscal year attributable to the Competing Service; or consolidated assets(iv) in a Restricted Business so long as ST is performing any Contract whose obligations are not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity assumed by Purchaser in connection with such Restricted Businessthe purchase of the Going Concern; and further provided that, the confidentiality provisions foregoing shall not prohibit the sale and purchase of --------------------- the Products within Seller Group during the Restricted Period. Notwithstanding any of the foregoing, this Agreement Section 6.4 shall be complied withnot prohibit any Person (or its Affiliates) that acquires Seller or any member of Seller Group from providing the Competing Service. (b) For Purchaser expressly acknowledges to be fully aware of the fact that one of Seller's Affiliates carries out in Yixing, China, activities comparable to the Business; in connection with the foregoing, the Parties expressly acknowledge and agree that (i) the non-competition obligations under letter (a) above do not apply with respect to the aforementioned activities and (ii) for the Restricted Period, the Sellers Seller shall not, and ST shall will cause all members of Seller Group not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage to solicit any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationshiplisted on Schedule 6.4(b). (c) The covenants and undertakings contained in this Section 7.10 relate During the Restricted Period, no member of Seller Group shall solicit for employment or hire any Employee. This restriction shall not apply to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury solicitation directed to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction public in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damagesgeneral. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Sale and Purchase Agreement (Balchem Corp)

Non-Competition; Non-Solicitation. Executive and the Company agree to the non-competition and non-solicitation provisions of this Article VII to protect the trade secrets and other Confidential Information of the Company disclosed or entrusted to Executive by the Company or its Affiliates or created or developed by Executive for the Company, to protect the goodwill of the Company and as a condition of Executive’s employment with the Company. (a) For a period Subject to the exceptions set forth in Section 7.2(b) below, Executive covenants and agrees from the date hereof until Effective Date up to the later Date of Termination, other than on behalf of the fifth anniversary Company or any of its Affiliates, Executive will refrain from carrying on or engaging directly or indirectly in the Business, and that after the Date of Termination and prior to the expiration of the Initial Closing Date (Prohibited Period, other than on behalf of the "Company or any of its Affiliates, Executive will refrain from carrying on or engaging directly or indirectly in the Business in the Restricted Period")Area. Executive further agrees and covenants that, ST and because the Sellers shall following conduct would effectively constitute carrying on or engaging in the Business, Executive will not, and shall Executive will cause their Executive’s Affiliates not to, in the applicable area during the Prohibited Period, other than on behalf of the Company or its Affiliates, directly or indirectly, (iA) own, manage, operate, join, become an employee of, control or participate in any business or Person which engages in the ownershipBusiness or (B) loan money to or sell or lease equipment related to the Business to any business or Person that engages in the Business. (b) Notwithstanding the restrictions contained in Section 7.2(a), management, operation Executive may own an aggregate of not more than 3% of (i) the outstanding stock or control other equity securities of any businessclass of any corporation or other entity engaged in the Business, whether if such stock or equity securities are listed on a national securities exchange or regularly traded in corporate, proprietorship or partnership form or otherwise, the over-the-counter market by a member of a national securities exchange or (ii) provide consultative of the outstanding limited partnership interests or advice services to other passive equity interests in a private investment fund entity not Affiliated with Executive that invests or owns interest or may invest or own interests in any individual corporation or entity, in either case that is (x) other entity engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, without violating the provisions of Section 7.2(a), in each case, including provided that neither Executive nor any business actually conducted or about to be conducted during of Executive’s Affiliates has the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, that the restrictions contained in this Section 7.10(a) shall not restrict the acquisition of a passive investment by ST and the Sellerspower, directly or indirectly, to control or direct the management or affairs of any such corporation or entity and is not involved in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% management of such corporation or entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The Executive further expressly covenants and undertakings contained in this Section 7.10 relate agrees that, other than on behalf of the Company or its Affiliates: (i) prior to matters the Date of Termination, Executive will not, and Executive will cause Executive’s Affiliates not to, canvass, solicit, approach or entice away, or cause to be canvassed, solicited, approached or enticed away, any customer of the Company or its Affiliates that was a customer or supplier of the Company or the Business during the period during which are of a special, unique and extraordinary character and a violation of Executive is employed by the Company or any of its Affiliates for the terms purpose of this Section 7.10 engaging in the Business; and (ii) after the Date of Termination and prior to the expiration of the Prohibited Period, Executive will not, and Executive will cause irreparable injury Executive’s Affiliates not to, within the Restricted Area, canvass, solicit, approach or entice away, or cause to be canvassed, solicited, approached or enticed away, any customer of the Buyer Company or DR Partnershipits Affiliates that was a customer, consultant or supplier of the amount Company or the Business during the period during which Executive is employed by the Company or any of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, its Affiliates for the remedy at law for any breach purpose of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction engaging in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damagesBusiness. (d) The parties hereto agree Executive further covenants and agrees that during the Prohibited Period, Executive will not, and Executive will cause Executive’s Affiliates not to, engage or employ, or solicit or contact with a view to the engagement or employment of, any Person who is an officer, director, manager or employee of the Company or its Affiliates. (e) Notwithstanding the foregoing, the above-referenced limitations in Section 7.2(a) and Section 7.2(c) shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, Executive agrees that, if any court in addition to the limitations in Article V and Section 7.2(d), the restrictions on Executive’s activities within those portions of competent jurisdiction in the Restricted Area located within the State of Oklahoma shall be as follows: during the Prohibited Period, Executive will not directly solicit the sale of goods, services, or a final nonappealable judgment determines that a specified time periodcombination of goods and services from the established customers of the Company or its Affiliates, a specified geographical area, a specified business limitation except when acting on behalf of the Company or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable partyits Affiliates.

Appears in 1 contract

Samples: Employment Agreement (Nine Energy Service, Inc.)

Non-Competition; Non-Solicitation. (a) For Tanus, for himself and his Affiliates and Family Members, hereby agrees for a period from of three (3) years following the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "Restricted Period"), ST and the Sellers shall notDate, and shall cause their Affiliates each Seller, hereby agrees for a period of two (2) years following the Closing Date, not to, to directly or indirectly, : (i) engage or invest in, own, manage, operate, control finance, control, or participate in the ownership, managementmanagement operation, operation financing, or control of any businessof, whether in corporatebe employed by, proprietorship or partnership form or otherwiseassociated with, or (ii) provide consultative in any manner connected with, lend such Seller’s name or any similar name to, lend their credit to or render services, assistance or advice services to to, any individual or entity, Competing Business anywhere in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around businessNorth America; provided, however, that Tanus and his Affiliates and Family Members, and each such Seller may purchase or otherwise acquire up to (but not more than) five percent of any class of equity securities (including securities convertible into or exchangeable for such equity securities) of any Competing Business (but without otherwise participating in the activities of such Competing Business) if such equity securities (including securities convertible into or exchangeable for such equity securities) are listed on any national or registered security exchange or have been registered under Section 12(g) of the Securities Exchange Act of 1934; (ii) whether for Tanus, his Affiliates or Family Members or for such Seller’s own account or for the account of any other Person, solicit Competing Business from any Person known by any Seller to be a customer of the Company or any Subsidiary, whether or not Tanus, his Affiliates or Family Members, or such Seller had personal contact with such Person during and by reason of Tanus, his Affiliates or Family Members’ or such Seller’s employment or ownership of the Company; (iii) whether for Tanus, his Affiliates or Family Members or for such Seller’s own account or the account of any other Person (A) solicit, any person who is an employee of the Company or any Subsidiary (except any individual identified on Schedule 7.4(a)(iii) of the Disclosure Schedule) or in any manner induce or attempt to induce any employee of the Company or any Subsidiary (except any individual identified on Schedule 7.4(a)(iii) of the Disclosure Schedule) to terminate his employment with the Company or any such Subsidiary; or (B) interfere with the Company’s or its Subsidiaries’ relationship with any Person; or (iv) publicly disparage the Company, its Subsidiaries or any of their stockholders, members, managers, directors, officers, employees, or agents. (b) The Parties hereto agree that irreparable damage may occur in the event that any of the provisions of this Section 7.4 was not performed in accordance with its specified terms or was otherwise breached. It is accordingly agreed that, subject to the determination of a court of competent jurisdiction, Purchaser shall be entitled to an injunction or injunctions to prevent breaches or threatened breaches of this Section 7.4 and to enforce specifically the terms and provisions herein in any court of competent jurisdiction, this being in addition to any other remedy to which they are entitled at law or in equity (without any requirement to post bond). (c) Tanus and each Seller acknowledge that the restrictions contained in this Section 7.10(a) shall not restrict 7.4 are reasonable and necessary to protect the acquisition legitimate interests of Purchaser and constitute a passive investment by ST and the Sellers, directly or indirectly, in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) material inducement to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of Purchaser to enter into this Agreement shall be complied with. (b) For and consummate the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) transactions contemplated by this Agreement. The covenants and undertakings contained in this Section 7.10 relate to matters which 7.4 and each provision hereof are of a special, unique severable and extraordinary character distinct covenants and a violation 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. If, at the time of the terms enforcement of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership7.4, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any a court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event determines that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10restrictions stated herein are unreasonable under the circumstances then existing, Tanus and each Seller agree that the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damages. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time maximum period, a specified scope or geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time area reasonable under such circumstances shall be substituted for the stated period, geographical scope or area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.

Appears in 1 contract

Samples: Membership Interest Purchase Agreement (Fortune Brands Home & Security, Inc.)

Non-Competition; Non-Solicitation. (a) For a period from of three (3) years commencing on the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "Restricted Period"), ST and the Sellers Seller shall not, and shall cause their not permit any of its Affiliates not 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 Acquired Company and customers or suppliers of any Acquired Company. Notwithstanding the foregoing, (i) Seller may own, managedirectly or indirectly, operatesolely as an investment, control securities of any Person traded on any national securities exchange if Seller is not a controlling Person of, or participate a member of a group which controls, such Person and does not, directly or indirectly, own 5% or more of any class of securities of such Person, and (ii) Seller or its Affiliates shall have the right to develop and/or construct additional plant sites using customers or suppliers of the Acquired Companies provided that (a) Seller gives Camber and its Affiliates ninety (90) days advance written notice, (b) the notice provides Camber and/or its Affiliates a description of the proposed plant and the timing of development and construction, (c) Camber and its Affiliates are provided with a right of first refusal for a period of ninety (90) days during which txxx Xxxxxx, Camber and its Affiliates covenant and agree to negotiate in good faith a participation or joint venture (whether financial or operational) in the ownershipplant to be developed or constructed. (b) During the Restricted Period, managementSeller shall not, operation and shall not permit any of its Affiliates to, directly or control indirectly, hire or solicit any employee of Camber and its Affiliates or of any businessAcquired Company or encourage any such employee to leave such employment or hire any such employee who has left such employment, whether except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in corporate, proprietorship this Section 5.06(b) shall prevent Seller or partnership form any of its Affiliates from hiring (i) any employee whose employment has been terminated by Camber and its Affiliates or otherwise, an Acquired Company or Buyer or (ii) provide consultative 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, Seller shall not, and shall not permit any of its Affiliates to, directly or advice indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of any Acquired Company or potential clients or customers of any Acquired Company for purposes of diverting their business or services from any Acquired Company. (d) Seller acknowledges that a breach or threatened breach of this Section 5.06 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Seller of any such obligations, Buyer shall, in addition to any individual or entityand all other rights and remedies that may be available to it in respect of such breach, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each casebe entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any business actually conducted or about other relief that may be available from a court of competent jurisdiction (without any requirement to be conducted during the Restricted Period post bond). (a "Restricted Business"), including but not limited to the prepaid wireless business or prepaid calling card, carrier wholesale and dial-around business; provided, however, e) Seller acknowledges that the restrictions contained in this Section 7.10(a) shall not restrict 5.06 are reasonable and necessary to protect the acquisition legitimate interests of Buyer and constitute a passive investment by ST and the Sellers, directly or indirectly, in the aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) material inducement to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of Buyer to enter into this Agreement shall be complied with. (b) For and consummate the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided transactions contemplated by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equityAgreement. In the event that the Buyer or DR Partnership were to seek damages for any breach of covenant contained in this Section 7.105.06 should ever be adjudicated to exceed the time, the portion of the Purchase Price which geographic, product or service, or other limitations permitted by Law in any jurisdiction, then any court is allocated by the parties expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the foregoing maximum time, geographic, product or service, or other limitations permitted by 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 be considered a measure of invalidate or limit on render unenforceable the remaining covenants or provisions hereof, and any such damages. (d) The parties hereto agree that, if invalidity or unenforceability in any court of competent jurisdiction shall not invalidate or render unenforceable such covenant or provision in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable partyjurisdiction.

Appears in 1 contract

Samples: Membership Interest Purchase Agreement (Camber Energy, Inc.)

Non-Competition; Non-Solicitation. (a) For Seller understands that Upper Holdings and Buyer have an interest in protecting and preserving the going concern value of the Business following the Closing to the extent permitted by Law and that Upper Holdings and Buyer would not have entered into this Agreement absent the provisions of this Section 4.18 and, therefore, Seller agrees that, for a period of three (3) years from the date hereof until the later of the fifth anniversary of the Initial Closing Date (the "Restricted Period"), ST and the Sellers Seller shall not, and shall cause their its Affiliates not to, directly or indirectly, engage in the provision of online program management services to institutions of higher education (each, a “Competitive Activity”); provided, however, that, notwithstanding anything in this Section 4.18(a) to the contrary, (i) ownthis Section 4.18(a) shall not apply with respect to (1) any Person or its Affiliates that acquires, managewhether by merger, operateconsolidation, control tender or exchange offer or other business combination or series of related transactions, all or a majority of the capital stock of Seller or all or substantially all of Seller’s consolidated assets, where such Person or its Affiliates were already materially engaged in a Competitive Activity prior to such acquisition, (2) the purchase or ownership of the Equity Securities or assets of a Person (or any business) that derives less than twenty percent (20%) of its total annual revenues from a Competitive Activity, so long as Seller and its Affiliates (or such Person) divests all or substantially all of (or otherwise discontinues) the portion of such Person or business that is engaged in Competitive Activities no later than twelve (12) months thereafter or (3) the direct or indirect ownership for passive investment purposes of up to 5% of the outstanding Equity Securities of any Person that are traded on a national securities exchange or otherwise described on Section 4.18(a) of the Seller Disclosure Schedule, provided, that, in each such case, Seller and its Affiliates do not participate in the ownershipmanagement or oversight thereof, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, or and (ii) provide consultative none of the businesses or advice services to activities conducted by Seller or any individual or entity, in either case that is of its Affiliates as of the date hereof (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with other than the Business, in each case, including any business actually conducted ) or about to be conducted during the Restricted Period (a "Restricted Business"), including but not limited services provided pursuant to the prepaid wireless business Transition Services Agreement shall be deemed to constitute Competitive Activities. (b) Seller agrees that the covenants included in Section 4.18(a) are, taken as a whole, reasonable in their geographic and temporal coverage and are necessary to protect the goodwill of the Business and the substantial investment made by Upper Holdings and Buyer therein, and Seller shall not raise any issue of geographic or prepaid calling card, carrier wholesale and dial-around businesstemporal reasonableness in any Claim to enforce such covenant; provided, however, that if the restrictions contained provisions of Section 4.18(a) should ever be deemed to exceed the time or geographic limitations or any other limitations permitted by applicable Law in this Section 7.10(aany jurisdiction, then such provisions shall be deemed reformed in such jurisdiction to the minimum extent required by applicable Law in order to cure such unlawfulness and such provisions shall be enforced as so reformed. (c) From and after the Closing, for a period of thirty (30) months following the Closing, Seller shall not, and shall cause its Affiliates not restrict the acquisition of a passive investment by ST and the Sellersto, directly or indirectly, in the aggregate solicit for employment or as an independent contractor any Continuing Employee earning annual compensation of less than 5% $150,000 or above as of the outstanding capital stock of any companydate hereof, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company except that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and does not provide, whether directly or indirectly, any service (whether as consultant, advisor or otherwise) to or for the benefit of the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with. (b) For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or encourage any Employees of the Buyer or DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a client or customer of the Business after the Initial Closing) or any other Person who has a material business relationship with the Business, to terminate or modify any such actual or prospective relationship. (c) The covenants and undertakings contained in this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 7.10 will cause irreparable injury to the Buyer or DR Partnership, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the event that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant 4.18(c) shall not be considered a measure of or limit on such damages. (d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.not

Appears in 1 contract

Samples: Membership Interest and Asset Purchase Agreement (John Wiley & Sons, Inc.)