Non-Solicitation; Non-Competition; Non-Disparagement. (a) For a period of four (4) years from the Closing Date, Seller shall not, nor shall it permit its Affiliates to, engage in any of the following activities, either directly or indirectly (individually, or through or on behalf of another Person) in each jurisdiction in which an Acquired Company currently conducts its businesses: (i) hire, solicit, encourage, or induce any Employee to terminate his employment with any Acquired Company, or to become employed by or to enter into a business relationship with any other Person, except that the foregoing restriction shall not include general solicitations of employment or hiring of persons responding to general solicitations of employment (including general advertising via periodicals, the internet and other media) not specifically directed towards Employees. For purposes of this Section 6.12, the term “Employee” includes any individual who is or was an employee of, agent of or consultant to any Acquired Company during the nine (9) month period prior to the Closing Date, but excludes any individual whose employment with the applicable Acquired Company terminated at least nine (9) months prior to the solicitation or hiring in question and any individual whose employment has been involuntarily terminated by Purchaser or any of its Affiliates, including the Acquired Companies, prior to any direct or indirect solicitation by Seller or any of its Affiliates; (ii) establish, engage, own, manage, operate or control, or participate in the establishment, ownership, management, operation or control of, or be a director, officer, manager, employee, salesman, agent or representative of, or be a consultant to, any Person that competes with the businesses of the Acquired Companies as of and where conducted as of the Closing Date (a “Competing Business”); provided, however, that nothing in this Section 6.12(a)(ii) shall be deemed to limit in any way or preclude Seller or any of its Affiliates from: (A) engaging in any activity not conducted by the Acquired Companies as of the Closing Date; (B) engaging in any activity conducted by Seller or any of its Affiliates (other than the Acquired Companies) as of the Closing Date; (C) providing any services to Seller or any Affiliate of Seller; (D) acquiring any Person or business that engages in any Competing Business; provided that (A) the engagement in such Competing Business does not constitute the principal part of the activities of the Person or business to be acquired or (B) if the Competing Business does constitute the principal part of the activities of the Person or business to be acquired, Seller will promptly as reasonably practicable, and in any event within one (1) year after its acquisition of the Competing Business, divest that portion of such Person or business that engages in the Competing Business; or (E) 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; or (iii) except as required in the normal course of duties for its business, request, knowingly induce or knowingly attempt to limit or influence any customer, Employee, supplier or other business entity to limit or curtail in any material respect or cancel or terminate any business it transacts with, or products or services it provides to or receives from the Acquired Companies or Purchaser. (b) Seller shall not, nor shall its Affiliates, at any time, intentionally disparage in any material respect Purchaser, the Acquired Companies, any Affiliate thereof, any of its or their respective businesses, members or Representatives, or the reputation of any of the foregoing Persons. Purchaser shall not, nor shall its Affiliates, at any time, intentionally disparage in any material respect Seller, any of its Affiliates or any of its or their respective businesses, managers, equity holders or Representatives, or the reputation of any of the foregoing Persons. This Section 6.12(b) shall not apply to (i) testimony obtained through subpoena or (ii) any information provided pursuant to an investigation by any Governmental Authority. (c) Notwithstanding anything to the contrary in this Agreement, the prohibitions in Section 6.12(a)(ii) shall not apply to (i) any businesses or operations of Seller or any of its Affiliates which are transferred to any unaffiliated third party after the date hereof pursuant to a bona fide sale transaction in which Seller ceases to have any ownership interest in such businesses or operations or (ii) any Affiliates of Seller the stock or other equity interests of which are transferred to any unaffiliated third party after the date hereof pursuant to a bona fide sale transaction in which Seller ceases to have any ownership interest in such businesses or operations. (d) If, at the time of enforcement of the covenants contained in this Section 6.12 (the “Restrictive Covenants”), a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under the circumstances then existing, Purchaser and Seller agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by applicable Law. Each party has consulted with legal counsel regarding the Restrictive Covenants and based on such consultation has determined and hereby acknowledges that the Restrictive Covenants are reasonable in terms of duration, scope and areas restrictions and are necessary to protect the goodwill of the Acquired Companies and their businesses and the substantial investment in such businesses and the Acquired Companies made by Purchaser. Each party further agrees that it will not challenge the reasonableness of the duration, scope and area restrictions in any Action with respect to the Restrictive Covenants, regardless of who initiates such Action.
Appears in 1 contract
Non-Solicitation; Non-Competition; Non-Disparagement. (a) For a During the period from the Closing Date until the third anniversary of four (4) years from the Closing Date, Seller and MWP shall not, nor directly or indirectly, and shall it not permit its any of their respective Affiliates to, engage in any of the following activities, either directly or indirectly (individually, or through or on behalf of another Person) in each jurisdiction in which an Acquired Company currently conducts its businesses:
(i) hireother than through or as a result of general media, social media or electronic advertisement that is not directed specifically to any Current Business Employee who becomes a Continued Employee or other employee of Canadian Buyer, any Company Group Member or any Subsidiary thereof, solicit, encouragehire, induce or attempt to induce, or assist others to solicit, hire, induce or attempt to induce, any Employee employee of Canadian Buyer, any Company Group Member or any Subsidiary thereof to terminate either (a) leave his or her employment with any Acquired CompanyCanadian Buyer, such Company Group Member or such Subsidiary, or to become (b) breach his or her employment agreement with Canadian Buyer, such Company Group Member or such Subsidiary, in each case, so long as such individual is employed by Canadian Buyer, any Company Group Member or to enter into any Subsidiary thereof and for ninety (90) days thereafter (provided, it being understood that a business relationship with solicitation of any such employee (other Personthan an employee listed in the Company “Knowledge” group) in the ninety (90) days after the date such employee terminates his or her employment or is terminated by Canadian Buyer, except that the foregoing restriction such Company Group Member or such Subsidiary shall not include general solicitations be a breach of employment this provision if such solicitation was done without knowledge that such employee was a former employee of Canadian Buyer, any Company Group Member or hiring any Subsidiary thereof); or
(ii) solicit or knowingly entice, or attempt to solicit or knowingly entice, any Significant Customer or Significant Supplier, in each case, for purposes of persons responding diverting any material business or services from the Business. For the avoidance of doubt, this Section 5.3(a)(ii) shall not prevent Seller or any of its Affiliates from selling Outside Stem & Yoke valves, post indicators and check valves to general solicitations of employment Significant Customers.
(b) During the Restricted Period, Seller and MWP shall not, directly or indirectly, and shall not permit their respective Affiliates to (i) engage in or assist others in engaging in a Competing Business in the Territory and/or (ii) have an interest in any Person that engages directly or indirectly in a Competing Business in the Territory in any capacity, including general advertising via periodicalsas a partner, the internet and other media) not specifically directed towards Employeesshareholder, member, employee, principal, agent, trustee or consultant. For purposes of this Section 6.125.3(b), (i) “Territory” means the term “Employee” includes any individual who is or was an employee ofUnited States, agent of or consultant to any Acquired Company during Canada and the nine (9) month period prior to the Closing DateUnited Mexican States, but excludes any individual whose employment with the applicable Acquired Company terminated at least nine (9) months prior to the solicitation or hiring in question and any individual whose employment has been involuntarily terminated by Purchaser or any of its Affiliates, including the Acquired Companies, prior to any direct or indirect solicitation by Seller or any of its Affiliates;
(ii) establish“Competing Business” means the designing, engagemanufacturing and selling of pipe fittings and couplings, ownpipe hangers and supports, managehammer unions, operate bull plugs and swage nipples constructed from cast iron, malleable iron, ductile iron or controlsteel primarily intended for sale to distributors serving heating, or participate ventilation and air conditioning, fire protection, industrial, power and oil and gas end markets, in each case, as conducted by the establishment, ownership, management, operation or control of, or be a director, officer, manager, employee, salesman, agent or representative of, or be a consultant to, any Person that competes with the businesses of the Acquired Companies as of and where conducted Company Group as of the Closing Date (a “Competing Business”); provided, however, that nothing in this Section 6.12(a)(ii) shall be deemed to limit in any way or preclude Seller or any of its Affiliates from:
(A) engaging in any activity not conducted by the Acquired Companies as of the Closing Date;
(B) engaging in any activity conducted by Seller or any of its Affiliates (other than the Acquired Companies) as of the Closing Date;
(C) providing any services to Seller or any Affiliate of Seller;
(D) acquiring any Person or business that engages in any Competing Business; provided that (A) the engagement in such Competing Business does not constitute the principal part of the activities of the Person or business to be acquired or (B) if the Competing Business does constitute the principal part of the activities of the Person or business to be acquired, Seller will promptly as reasonably practicable, and in any event within one (1) year after its acquisition of the Competing Business, divest that portion of such Person or business that engages in the Competing Business; or
(E) 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; or
(iii) except as required in the normal course of duties for its business, request, knowingly induce or knowingly attempt to limit or influence any customer, Employee, supplier or other business entity to limit or curtail in any material respect or cancel or terminate any business it transacts with, or products or services it provides to or receives from the Acquired Companies or Purchaserdate hereof.
(b) Seller shall not, nor shall its Affiliates, at any time, intentionally disparage in any material respect Purchaser, the Acquired Companies, any Affiliate thereof, any of its or their respective businesses, members or Representatives, or the reputation of any of the foregoing Persons. Purchaser shall not, nor shall its Affiliates, at any time, intentionally disparage in any material respect Seller, any of its Affiliates or any of its or their respective businesses, managers, equity holders or Representatives, or the reputation of any of the foregoing Persons. This Section 6.12(b) shall not apply to (i) testimony obtained through subpoena or (ii) any information provided pursuant to an investigation by any Governmental Authority.
(c) Notwithstanding anything to the contrary in this Agreement, the prohibitions in Section 6.12(a)(ii) shall not apply to (i) any businesses or operations of Seller or any of its Affiliates which are transferred to any unaffiliated third party after the date hereof pursuant to a bona fide sale transaction in which Seller ceases to have any ownership interest in such businesses or operations or (ii) any Affiliates of Seller the stock or other equity interests of which are transferred to any unaffiliated third party after the date hereof pursuant to a bona fide sale transaction in which Seller ceases to have any ownership interest in such businesses or operations.
(d) If, at the time of enforcement of the covenants contained in this Section 6.12 (the “Restrictive Covenants”), a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under the circumstances then existing, Purchaser and Seller agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by applicable Law. Each party has consulted with legal counsel regarding the Restrictive Covenants and based on such consultation has determined and hereby acknowledges that the Restrictive Covenants are reasonable in terms of duration, scope and areas restrictions and are necessary to protect the goodwill of the Acquired Companies and their businesses and the substantial investment in such businesses and the Acquired Companies made by Purchaser. Each party further agrees that it will not challenge the reasonableness of the duration, scope and area restrictions in any Action with respect to the Restrictive Covenants, regardless of who initiates such Action.
Appears in 1 contract
Non-Solicitation; Non-Competition; Non-Disparagement. In consideration for the Retention Award and continued access to Confidential Information, specialized training, and the Company’s business goodwill, you agree that:
(a) For a period From the date hereof until the first anniversary of four (4) years from the Closing Datedate of the termination of your employment with the Company for any reason, Seller you shall not, nor shall it permit its Affiliates todirectly or indirectly, engage alone or in any of the following activitiesconcert with others, solicit (either directly or indirectly by assisting others) the business of any customer of the Company with whom you had contact during the final two (individually, or through or on behalf 2) years of another Person) in each jurisdiction in which an Acquired Company currently conducts its businesses:
(i) hire, solicit, encourage, or induce any Employee to terminate his your employment with any Acquired the Company, or otherwise induce any such customer to become employed by or to enter into a business change its relationship with any other Person, except that the foregoing restriction shall not include general solicitations of employment or hiring of persons responding to general solicitations of employment (including general advertising via periodicals, the internet and other media) not specifically directed towards Employees. For purposes of this Section 6.12, the term “Employee” includes any individual who is or was an employee of, agent of or consultant to any Acquired Company during the nine (9) month period prior to the Closing Date, but excludes any individual whose employment with the applicable Acquired Company terminated at least nine (9) months prior to the solicitation or hiring in question and any individual whose employment has been involuntarily terminated by Purchaser or any of its Affiliates, including the Acquired Companies, prior to any direct or indirect solicitation by Seller or any of its Affiliates;
(ii) establish, engage, own, manage, operate or control, or participate in the establishment, ownership, management, operation or control of, or be a director, officer, manager, employee, salesman, agent or representative of, or be a consultant to, any Person that competes with the businesses of the Acquired Companies as of and where conducted as of the Closing Date (a “Competing Business”)Company; provided, however, that nothing in this Section 6.12(a)(ii) shall be deemed to limit in any way or preclude Seller or any of its Affiliates from:
(A) engaging in any activity not conducted by the Acquired Companies as of the Closing Date;
(B) engaging in any activity conducted by Seller or any of its Affiliates (other than the Acquired Companies) as of the Closing Date;
(C) providing any services to Seller or any Affiliate of Seller;
(D) acquiring any Person or business that engages in any Competing Business; provided that (A) the engagement in such Competing Business does not constitute the principal part of the activities of the Person or business to be acquired or (B) if the Competing Business does constitute the principal part of the activities of the Person or business to be acquired, Seller will promptly as reasonably practicable, and in any event within one (1) year after its acquisition of the Competing Business, divest that portion of such Person or business that engages in the Competing Business; or
(E) 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; or
(iii) except as required in the normal course of duties for its business, request, knowingly induce or knowingly attempt to limit or influence any customer, Employee, supplier or other business entity to limit or curtail in any material respect or cancel or terminate any business it transacts with, or products or services it provides to or receives from the Acquired Companies or Purchaser.and
(b) Seller From the date hereof until the first anniversary of the date of the termination of your employment with the Company for any reason, you shall not, nor shall its Affiliatesdirectly or indirectly, at any timealone or in concert with others, intentionally disparage in any material respect Purchasersolicit, the Acquired Companiesrecruit, any Affiliate thereof, any of its or their respective businesses, members or Representativeshire, or the reputation of attempt to solicit, recruit or hire any of the foregoing Persons. Purchaser shall notCompany’s current or former employees with whom you had contact (which includes, nor shall its Affiliatesbut is not limited to, at employees within your chain of command or under your supervisory authority) during the final two (2) years of your employment with the Company or otherwise induce any time, intentionally disparage in any material respect Seller, any of its Affiliates such current employee to terminate his or any of its or their respective businesses, managers, equity holders or Representatives, or her employment with the reputation of any of the foregoing Persons. This Section 6.12(b) shall not apply to (i) testimony obtained through subpoena or (ii) any information provided pursuant to an investigation by any Governmental Authority.Company; and
(c) Notwithstanding anything to the contrary in this Agreement, the prohibitions in Section 6.12(a)(ii) shall not apply to (i) any businesses or operations of Seller or any of its Affiliates which are transferred to any unaffiliated third party after From the date hereof pursuant to a bona fide sale transaction in which Seller ceases to have any ownership interest in such businesses or operations or (ii) any Affiliates until the first anniversary of Seller the stock or other equity interests of which are transferred to any unaffiliated third party after the date hereof pursuant to of the termination of your employment with the Company for any reason, you shall not, on behalf of a bona fide sale transaction Competitor, directly or indirectly (whether as an employee, employer, consultant, agent, principal, partner, equityholder, officer or director, or in which Seller ceases to have any ownership interest other representative capacity) engage in such businesses or operationsthe Business at any location within the Restricted Area.
(d) IfFrom the date hereof and at all times following the termination of your employment with the Company for any reason, at you shall not, and shall not induce others to, directly or indirectly, for yourself or on behalf of, or in conjunction with, any other person, persons, company, partnership, corporation, business entity, or otherwise, disparage, criticize, or defame the Company, its affiliates and their respective affiliates, directors, officers, agents, shareholders or employees, either publicly or privately, or make any statements that are inflammatory, detrimental, slanderous, or negative in any way to the interests of the Company or its affiliates; provided that nothing herein shall or shall be deemed to prevent or impair you from testifying truthfully in any legal or administrative proceeding if such testimony is compelled or requested (or otherwise complying with legal requirements).
(e) As used in this Section 4, the term “Company” shall mean the Company and any of its direct or indirect subsidiaries. If any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect the remaining provisions of this Agreement, and the remaining provisions of this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in this Agreement. In the event the terms of this Section 4 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its extending for too great a period of time or over too great a geographical area or by reason of enforcement its being too extensive in any other respect, it will be interpreted to extend only over the maximum period of time for which it may be enforceable, over the maximum geographical area as to which it may be enforceable, 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.
(f) Any breach or violation by you of the provisions of this Section 4 shall toll the running of any time periods set forth in this Section 4 for the duration of any such breach or violation. You recognize and acknowledge that a breach of the covenants contained in this Section 6.12 (4 will cause irreparable damage to the “Restrictive Covenants”)Company and its goodwill, a court shall hold that the durationexact amount of which will be difficult or impossible to ascertain, scope or area restrictions stated herein are unreasonable under the circumstances then existing, Purchaser and Seller agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall remedies at law for any such breach will be allowed and directed to revise inadequate. Accordingly, you agree that in the restrictions contained herein to cover the maximum period, scope and area permitted by applicable Law. Each party has consulted with legal counsel regarding the Restrictive Covenants and based on such consultation has determined and hereby acknowledges that the Restrictive Covenants are reasonable in terms event of duration, scope and areas restrictions and are necessary to protect the goodwill a breach of any of the Acquired Companies covenants contained in Section 4, in addition to any other remedy which may be available at law or in equity, the Company will be entitled to specific performance and their businesses and injunctive relief.
(g) Section 4(c) of this agreement shall not apply to you in the substantial investment in such businesses and event that your employment is terminated by (i) the Acquired Companies made by Purchaser. Each party further agrees that it will not challenge the reasonableness of the duration, scope and area restrictions in any Action with respect to the Restrictive Covenants, regardless of who initiates such ActionCompany without Cause or (ii) you for Good Reason.
Appears in 1 contract
Non-Solicitation; Non-Competition; Non-Disparagement. As part of the inducement to Buyer to consummate the Contemplated Transactions and enter into this Agreement, each person listed on Schedule 6.13 and each Seller (each, a “Restricted Person”) is willing to agree to abide by the following restrictions:
(a) For a period of four (4) years from Except as disclosed on Schedule 6.13(a), and to the Closing Datemaximum extent permitted by applicable law, Seller for the Restricted Period, such Restricted Person shall not, nor and such Restricted Person shall it permit cause its controlled Affiliates not to, engage in any of the following activities, either directly or indirectly (individually, or through or on behalf of another Person) , or in each jurisdiction in which an Acquired Company currently conducts its businesses:any other capacity):
(i) hire, solicit, encourage, solicit or engage in any activity to induce any Employee to terminate his or her employment with any Acquired CompanyGroup Company or any of its Subsidiaries, or to become employed by or to enter into a business relationship with such Restricted Person to perform material services other than for the benefit of Buyer, the Group Company or any other Personof its Subsidiaries, except that the foregoing restriction shall not include general (A) the hiring or engagement of Employees who apply for employment or engagement with a Restricted Person of their own initiative without direct or indirect inducement or encouragement by such Restricted Person (provided that, with respect to any such Employee who terminated employment with the applicable Group Company at his or her own choice, at least six months shall have elapsed since his or her termination of such employment or engagement prior to such hiring or engagement) or (B) general, non-targeted solicitations of employment or hiring of persons Persons responding to general solicitations of employment (including general advertising via periodicals, the internet and other media) or engagement not specifically directed towards Employees. For purposes of this Section 6.126.13(a)(i), the term “Employee” includes any individual who the applicable Restricted Person knows is or was an employee ofemployee, agent of or consultant to any Acquired Group Company or any of their Subsidiaries during the nine (9) three-month period prior to the Closing Date, but excludes any individual whose employment with the applicable Acquired Company terminated at least nine (9) months prior to the solicitation or hiring in question and any individual whose employment has been involuntarily terminated by Purchaser Buyer or any of its Affiliates, including the Acquired Group Companies, prior to any direct or indirect solicitation by Seller or any of its Affiliates;
(ii) except as disclosed on Schedule 6.13(a)(ii), establish, engage, own, manage, operate operate, join or control, or participate in the establishment, ownership, management, operation or control of, or be a director, officer, manager, employee, salesman, agent or representative Representative of, or be a consultant to, any Person that competes with the businesses of the Acquired Group Companies as of and where conducted as of the Closing Date (a “Competing Business”); providedin the United States, however, except that nothing in this Section 6.12(a)(ii) the foregoing restriction shall be deemed to limit in any way or preclude Seller or any of its Affiliates fromnot include:
(A) engaging investing in or holding not more than 5% of the outstanding securities of any class of any publicly-traded securities of a company that competes with the businesses of the Group Companies in the United States; or
(B) undertaking, participating or carrying on or being engaged or having any interest in, or in any activity not conducted by other manner advising or assisting, a Person that owns, manages or operates both (1) a business that competes with the Acquired business of the Group Companies in the United States as of the Closing Date;
and (B2) engaging in any activity conducted by Seller one or any of its Affiliates more other businesses (other than the Acquired Companiesor portions thereof) as of the Closing Date;
(C) providing any services to Seller or any Affiliate of Seller;
(D) acquiring any Person or business that engages in any Competing Business; do not so compete, provided that (A) the engagement in such Competing Business does not constitute the principal part of the Restricted Person’s and its controlled Affiliates’ activities of the Person are performed solely with respect to such one or business to be acquired more non-competing businesses or (B) if the Competing Business does constitute the principal part of the activities of the Person or business to be acquired, Seller will promptly as reasonably practicable, and in any event within one (1) year after its acquisition of the Competing Business, divest that portion of such Person or business that engages in the Competing Business; or
(E) 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 decisionsnon-competing portions; or
(iii) except as required in the normal course of duties for its business, request, knowingly induce or knowingly attempt to limit or knowingly influence any customer, Employee, supplier or other business entity to limit or curtail in any material respect or curtail, cancel or terminate terminate, any business it transacts with, or products or services it provides to or receives from from, the Acquired Companies Group Companies, their Subsidiaries or PurchaserBuyer.
(bi) Seller Each Restricted Person shall not, nor and shall its Affiliatesuse commercially reasonable efforts to cause each of his controlled Affiliates not to, at any time, intentionally knowingly disparage in any material respect PurchaserBuyer, the Acquired Group Companies, any Affiliate thereof, any of its or their respective businesses, members officers, managers, members, or Representativesdirectors, or the reputation of any of the foregoing Persons. Purchaser , in connection with the business of the Group Companies; provided, that such restriction shall not prohibit any Restricted Person from (A) making any truthful statement to the extent required by Law or by any Governmental Authority with jurisdiction to order such Person to disclose or make accessible such information or (B) exercising or enforcing any of its rights under this Agreement, any other Transaction Document or any other agreement with any of Buyer, the Group Companies or their Subsidiaries; and
(ii) Buyer shall not, nor and shall use commercially reasonable efforts to cause each of its Affiliatescontrolled Affiliates not to, at any time, intentionally knowingly disparage in any material respect SellerRestricted Person, any of its their respective Affiliates or any of its or their respective businesses, officers, managers, equity holders holders, or Representativesdirectors, or the reputation of any of the foregoing Persons. This Section 6.12(b) , in connection with their prior ownership and operation of the Group Companies; provided, that such restriction shall not apply prohibit Buyer from (A) making any truthful statement to (i) testimony obtained through subpoena the extent required by Law or (ii) any information provided pursuant to an investigation by any Governmental AuthorityAuthority with jurisdiction to order Buyer to disclose or make accessible such information or (B) exercising or enforcing any of its rights under this Agreement, any other Transaction Document or any other agreement with any of the Restricted Person or any of their respective Affiliates.
(c) Notwithstanding anything to the contrary in this Agreement, the prohibitions in Section 6.12(a)(ii) shall not apply to (i) any businesses or operations of Seller or any of its Affiliates which are transferred to any unaffiliated third party after the date hereof pursuant to a bona fide sale transaction in which Seller ceases to have any ownership interest in such businesses or operations or (ii) any Affiliates of Seller the stock or other equity interests of which are transferred to any unaffiliated third party after the date hereof pursuant to a bona fide sale transaction in which Seller ceases to have any ownership interest in such businesses or operations.
(d) If, at the time of enforcement of the covenants contained in this Section 6.12 6.13 (the “Restrictive Covenants”), a court shall hold of competent jurisdiction holds that the duration, scope or area restrictions stated herein are unreasonable under the circumstances then existing, Purchaser Buyer and Seller the Restricted Persons agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum period, scope and area permitted by applicable Law. Each party of the Restricted Persons and Buyer has consulted with legal counsel regarding the Restrictive Covenants and based on such consultation has determined and hereby acknowledges that the Restrictive Covenants are reasonable in terms of duration, scope and areas restrictions and are necessary to protect the goodwill of the Acquired Group Companies and their businesses and the substantial investment in such businesses and the Acquired Group Companies made by PurchaserBuyer pursuant to this Agreement. Each party of the Restricted Persons and Buyer further agrees that it will shall not challenge the reasonableness of the duration, scope and area restrictions in any Action with respect to the Restrictive Covenants, regardless of who initiates such Action.
Appears in 1 contract
