Non-Solicitation; Non-Competition. (a) The Seller Parties agree that, for the period commencing on the Closing Date and expiring on the second anniversary of the Closing Date, they shall not and shall not direct any of their controlled Affiliates to, (i) induce or encourage any Employee to reject Buyer’s offer of employment, (ii) solicit for employment or any similar arrangement any Transferred Employee or (iii) hire or assist any other Person in hiring any Transferred Employee; provided, however, that this Section 6.10(a) shall not prohibit general solicitations for employment through advertisements or other means or apply to any Employees that are not Transferred Employees or Transferred Employees that are terminated by the Buyer after the Closing Date. (b) The Seller Parties agree that, for the period commencing on the Closing Date and expiring on the third anniversary of the Closing Date, they shall not and shall direct any of their controlled Affiliates not to, engage, either directly or indirectly, alone or with others, as stockholders or otherwise in any Competitive Business, including, for the avoidance of doubt, through the use of any knowledge of the Business to promote business with advertisers and agencies through competitors of the Business. Notwithstanding the foregoing, the Seller Parties and their Affiliates shall be permitted to acquire any Person, division or business that competes with the Business if the good faith, projected revenue of such Person, division or business that is attributable to the business of the Business for the calendar year in which the sale is consummated is less than (i) $5 million and (ii) ten percent (10%) of the aggregate, good faith, projected revenue of the Person, division or business for the same calendar year, provided that the portion of the acquired Person, division or business that is attributable to the business that competes with the Business shall be terminated or disposed of within six (6) months of such acquisition. (c) Buyer agrees that, for the period commencing on the Closing Date and expiring on the second anniversary of the Closing Date, Buyer shall not and shall not direct any of their controlled Affiliates to, (i) solicit for employment or any similar arrangement any employee of a Seller Party or any of its Affiliates who is not a Transferred Employee or (ii) hire or assist any other Person in hiring any such employee; provided, however, that this Section 6.10(d) shall not prohibit general solicitations for employment through advertisements or other means or apply to any such employee who is terminated by a Seller Party or any of its Affiliates after the Closing Date.
Appears in 1 contract
Non-Solicitation; Non-Competition. (a) The Seller Parties agree thatExcept as otherwise agreed to by the Purchaser and Seller, for the a period commencing on the Closing Date and expiring on the second anniversary of thirty-six (36) months following the Closing Date, they Seller shall not, and shall cause the Seller Subsidiaries and Affiliates of Seller who are acting at the direction or on behalf of Seller not to, directly or indirectly, employ, hire, enter into an agency or consulting relationship with, recruit or solicit for employment any Transferred Employee or otherwise induce any Transferred Employee to terminate employment with Purchaser; provided that the foregoing restrictions shall not and shall not direct any of their controlled Affiliates to, apply to (i) induce any Transferred Employee who ceased to be employed by Purchaser or encourage its Subsidiaries for a period of at least six (6) months prior to any Employee to reject Buyer’s offer solicitation by and the commencement of employmentany discussions with Seller or the Seller Subsidiaries or Affiliates of Seller who are acting at the direction or on behalf of Seller, (ii) solicit for employment any general solicitations not targeted at Transferred Employees (including through the use of recruiting firms not directed at Transferred Employees) or advertisements in any similar arrangement newspaper, magazine, trade publication, electronic medium or other media and any Transferred Employees who respond thereto and (iii) any Transferred Employee who contacts Seller or (iii) hire any Seller Subsidiary on his or assist her own initiative and without any other Person in hiring solicitation or encouragement by or on behalf of Seller or any Transferred Employee; provided, however, that this Section 6.10(a) shall not prohibit general solicitations for employment through advertisements Seller Subsidiary or other means Affiliates of Seller who are acting at the direction or apply to any Employees that are not Transferred Employees or Transferred Employees that are terminated by the Buyer after the Closing Dateon behalf of Seller.
(b) The Seller Parties agree that, for the For a period commencing on the Closing Date and expiring on the third anniversary of five (5) years following the Closing Date, they Seller shall not not, and shall direct any of their controlled Affiliates cause the Seller Subsidiaries not to, engagedirectly engage in the business of providing subscribers with residential and commercial cable television services, either directly High Speed Internet Service, Voice Services and other current products and current services in the State of Ohio or indirectly, alone or with others, as stockholders or otherwise in any Competitive Business, including, for the avoidance of doubt, through the use of any knowledge geographic location within fifty (50) miles of the Business to promote business with advertisers Market (the “Buffer Zone” and agencies through competitors of such restricted business, collectively, the “Restricted Purchaser Business”). Notwithstanding the foregoing, the Seller Parties and their Affiliates Buffer Zone shall be permitted to acquire any Person, division or business that competes with not include the Business if the good faith, projected revenue State of such Person, division or business that is attributable to the business of the Business for the calendar year in which the sale is consummated is less than (i) $5 million and (ii) ten percent (10%) of the aggregate, good faith, projected revenue of the Person, division or business for the same calendar year, provided that the portion of the acquired Person, division or business that is attributable to the business that competes with the Business shall be terminated or disposed of within six (6) months of such acquisitionMichigan.
(c) Buyer agrees thatNotwithstanding the foregoing, for the period commencing on the Closing Date and expiring on the second anniversary nothing in Section 5.11(b) shall in any way prohibit or prevent Seller or any of the Closing Date, Buyer shall not and shall not direct Seller Subsidiaries or any of their controlled respective Affiliates to, from:
(i) solicit for employment acquiring any securities or any similar arrangement any employee interests (whether by way of a purchase, merger, consolidation or other transaction) in any Person or business:
(A) if such securities or interests represent less than 10% of the voting interests in such Person or business;
(B) if such Person or business derived 10% or less of its total annual revenues in the most recent fiscal year from activities that constitute a Restricted Purchaser Business; or
(C) if such Person or business derived more than 10% of its total annual revenues in the most recent fiscal year from activities that constitute a Restricted Purchaser Business and Seller Party and the Seller Subsidiaries divest or otherwise cause the Restricted Purchaser Business to constitute less than 10% of such Person’s or business’s total annual revenues within twelve (12) months following such acquisition; and/or
(ii) exercising its rights or complying with its obligations under this Agreement or any of its Affiliates who is the Ancillary Agreements.
(d) Notwithstanding the foregoing, the provisions of Section 5.11(b) (i) shall not restrain or prohibit, and shall terminate in their entirety upon, the consummation of any transaction or series of related transactions that results in a Transferred Employee change of control of Seller or a majority of the assets of Seller and the Seller Subsidiaries, and (ii) hire or assist any other Person in hiring any such employee; provided, however, that this Section 6.10(d) shall not restrain or prohibit general solicitations for employment through advertisements any activities, actions or other means conduct of any Person that is not directly or apply to indirectly controlled by Seller, including any such employee who is terminated by a joint ventures, partnerships or co-investment vehicles that neither Seller Party nor any of the Seller Subsidiaries controls, or any investments in funds in which Seller has no right of its Affiliates after decision with respect to the Closing Dateinvestment strategy of such funds.
Appears in 1 contract
Non-Solicitation; Non-Competition. (a) The Seller Parties agree that, for the For a period commencing on the Closing Date and expiring on the second anniversary of two (2) years following the Closing Date, they Seller shall not not, and shall not direct permit any of their controlled Affiliates Retained Entity to, directly or indirectly:
(i) induce solicit or encourage hire (or cause to be directly or indirectly solicited or hired) any Transferred Employee listed on Schedule 5.17(a)(i) (each, a “Business Covered Employee”); provided that, the foregoing restriction shall not apply to reject Buyer’s offer (A) generalized searches by use of employmentadvertising or recruiting efforts (including the use of search firms) that are not specifically targeted at such Business Covered Employees, or hiring any such Business Covered Employee who responds to any such general solicitation; or (B) soliciting or hiring any such Business Covered Employee who is no longer employed by Buyer or any of its Affiliates and has not been so employed by Buyer or its Affiliates for at least one hundred and eighty (180) days (provided, that such one hundred and eighty (180) day period shall not apply with respect to any such Business Covered Employee whose employment has been terminated by Buyer or its Affiliates without cause); or
(ii) solicit for employment or any similar arrangement hire (or cause to be directly or indirectly solicited or hired) any Transferred Employee (other than any Business Covered Employee); provided that, the foregoing restriction shall not apply to (A) generalized searches by use of advertising or recruiting efforts (including the use of search firms) that are not specifically targeted at such Transferred Employees, or hiring any such Transferred Employee who responds to any such general solicitation; (B) soliciting or hiring any such Transferred Employee who is no longer employed by Buyer or any of its Affiliates and has not been so employed by Buyer or its Affiliates for at least one hundred and eighty (180) days (provided, that such one hundred and eighty (180) day period shall not apply with respect to any such Transferred Employee who is no longer employed by Buyer or its Affiliates as a result of broad-based terminations or layoffs of such Transferred Employees); or (iiiC) soliciting or hiring any such Transferred Employee who contacts Seller or any Retained Entity on his or her own initiative regarding employment without any solicitation or encouragement from Seller or such Retained Entity.
(b) For a period of two (2) years following the Closing Date, Buyer shall not, and shall not permit any of its Subsidiaries (including, after the Closing, the Purchased Subsidiaries) to, directly or indirectly:
(i) solicit or hire (or assist cause to be directly or indirectly solicited or hired) any employee of Seller or any Retained Entity set forth on Schedule 5.17(b)(i)(each, a “Seller Covered Employee”); provided that, the foregoing restriction shall not apply to (A) generalized searches by use of advertising or recruiting efforts (including the use of search firms) that are not specifically targeted at such Seller Covered Employees, or hiring any such Seller Covered Employee who responds to any such general solicitation; or (B) soliciting or hiring any such Seller Covered Employee who is no longer employed by Seller or any Retained Entity and has not been so employed by Seller or any Retained Entity for at least one hundred and eighty (180) days (provided, that such one hundred and eighty (180) day period shall not apply with respect to any such employee whose employment has been terminated by Seller or any Retained Entity without cause); or
(ii) solicit or hire (or cause to be directly or indirectly solicited or hired) any employee of Seller or any Retained Entity (other Person than any Seller Covered Employee) who was first introduced to Buyer (x) in hiring connection with the transactions contemplated by this Agreement or (y) prior to the Closing, by any Transferred Employee; provided that, the foregoing restriction shall not apply to (A) generalized searches by use of advertising or recruiting efforts (including the use of search firms) that are not specifically targeted at such employees, or hiring any such employee who responds to any such general solicitation; (B) soliciting or hiring any such employee who is no longer employed by Seller or any Retained Entity and has not been so employed by Seller or any Retained Entity for at least one hundred and eighty (180) days (provided, that such one hundred and eighty (180) day period shall not apply with respect to any such employee who is no longer employed by Seller or any Retained Entity as a result of broad-based terminations or layoffs of such employees); or (C) soliciting or hiring any such employee who contacts Buyer or its Affiliates on his or her own initiative regarding employment without any solicitation or encouragement from Buyer or its Affiliates.
(c) For a period of three (3) years following the Closing Date, Seller shall not, and shall cause the Retained Entities not to, engage in any Competitive Activity; provided, however, that this Section 6.10(a) the foregoing shall not prohibit general solicitations for employment through advertisements restrict Seller or other means any Retained Entity from (i) acquiring or apply to any Employees that are not Transferred Employees or Transferred Employees that are terminated by the Buyer after the Closing Date.
(b) The Seller Parties agree thatowning as an investment, for the period commencing on the Closing Date and expiring on the third anniversary of the Closing Date, they shall not and shall direct any of their controlled Affiliates not to, engage, either directly or indirectly, alone securities or with others, as stockholders or otherwise any indebtedness of any Person that is engaged in any Competitive BusinessActivity if Seller or such Retained Entity does not, includingdirectly or indirectly, for beneficially own in the avoidance of doubt, through the use of any knowledge of the Business to promote business with advertisers and agencies through competitors of the Business. Notwithstanding the foregoing, the Seller Parties and their Affiliates shall be permitted to acquire any Person, division or business that competes with the Business if the good faith, projected revenue of such Person, division or business that is attributable to the business of the Business for the calendar year in which the sale is consummated is less aggregate more than (i) $5 million and (ii) ten percent (10%) of the aggregate, good faith, projected revenue of the Person, division or business for the same calendar year, provided that the portion of the acquired Person, division or business that is attributable to the business that competes with the Business shall be terminated or disposed of within six (6) months of such acquisition.
(c) Buyer agrees that, for the period commencing on the Closing Date and expiring on the second anniversary of the Closing Date, Buyer shall not and shall not direct any of their controlled Affiliates to, (i) solicit for employment or any similar arrangement any employee of a Seller Party or any of its Affiliates who is not a Transferred Employee or (ii) hire or assist any other Person in hiring any such employee; provided, however, that this Section 6.10(d) shall not prohibit general solicitations for employment through advertisements or other means or apply to any such employee who is terminated by a Seller Party or any of its Affiliates after the Closing Date.outstanding
Appears in 1 contract
Non-Solicitation; Non-Competition. (a) The Each Seller Parties agree thatagrees that for the period commencing on the Closing Date and expiring 18 months after the Closing Date neither it nor any of its respective Affiliates will, directly or indirectly, solicit for employment or any similar arrangement or hire any Transferred Business Employee; provided, however, that this Section 6.7(a) shall not apply to any Transferred Business Employee who has left the employment of Purchaser or any of its Affiliates for at least six months preceding the date of contract between such Seller or its Affiliates and such individual and shall not prohibit general solicitations for employment through advertisements or other means not targeted at Transferred Business Employees (and the hiring of any persons identified by such general solicitations).
(b) Each Seller agrees that for the period commencing on the Closing Date and expiring two years after the Closing Date neither it nor any of its respective Affiliates (the “Restricted Entities”) shall engage, either directly or indirectly, alone or with others, in or own, manage or operate any business in the United States that is engaged in business engaged in by the CRS Business as of the date hereof (such business, the “Competing Business”); provided that nothing in this Section 6.7(b) shall preclude Sellers or any of their Affiliates from (i) continuing to own, service, administer and maintain any Restricted Item, (ii) owning up to 10% of the voting equity of any Person engaged in a Competing Business (provided such investment is a passive, non-controlling investment), (iii) operating the Retained Business, (iv) issuing any Non-Credit Card Products and owning, servicing, administering and maintaining accounts and receivables related to any Non-Credit Card Products, (v) making acquisitions or maintaining ownership of any entity in connection with a bona fide financial investment by a venture capital, private equity, merchant banking or similar line of business of any such Restricted Entity provided that the primary purpose of such investment is not evading the restrictions set forth in this Section 6.7(b) or anything done on behalf of clients or third party fiduciaries, (vi) financing, lending or making extensions of credit to, or foreclosing on the collateral of, or acquiring any non-convertible debt securities of, any Competing Business in the ordinary course of business, (vii) acquiring any equity securities of any Person that has outstanding indebtedness to Sellers or any of their Affiliates, or engaging in any activities otherwise prohibited by this Section 6.7(b) in connection with any such person as a result of the acquisition of such equity securities, in satisfaction of a debt previously contracted in a distressed or troubled situation; provided that in each case of clause (vi) and (vii) they shall divest, sell dispose of or otherwise transfer, as soon as reasonably practicable following the purchase or acquisition of any such Competing Business or any such equity securities (viii) merging, consolidating or otherwise engaging in a business combination with, or selling all or substantially all of its assets or businesses to, any Person that is not an Affiliate of any such Restricted Entity with an existing Competing Business and continuing to operate such existing Competing Business (provided that (A) members of such Selling Entity’s board of directors (or comparable governing body) do not constitute a majority of the board of directors of the surviving corporation of such transaction (or of the board of directors of its publicly traded parent company) and (B) that the shareholders of such Selling Entity immediately prior to consummation of such transaction do not immediately after consummation of such transaction own 60% or more of the outstanding capital stock or other equity interests of the surviving entity of such transaction (or of its publicly traded parent company) or (ix) purchasing or acquiring (through merger, stock purchase or purchase of all or substantially all of the assets or otherwise) any Person engaged in a Competing Business and continuing to operate such existing Competing Business (provided that (A) such existing Competing Business shall not represent more than 30% of the consolidated annual revenues of the business or entity acquired or (B) if such existing Competing Business represents more than 30% but less than 60% of the consolidated annual revenues of the business or entity acquired, Sellers or their respective Affiliates, as applicable, divest, sell dispose of or otherwise transfer, as soon as reasonably practicable following the purchase or acquisition thereof, sufficient assets or business of such Competing Business to reduce the consolidated annual revenues that the Competing Business represents of the business or entity acquired to 30% or less).
(c) Each Seller agrees that for the period commencing on the Closing Date and expiring on the second later of (i) the date that is two years following the Closing Date and (ii) the one year anniversary of the Closing Date, they shall not and shall not direct any expiration of their controlled Affiliates to, the current term of the applicable Specified Partner Agreement (i) induce or encourage any Employee to reject Buyer’s offer of employment, (ii) solicit for employment or any similar arrangement any Transferred Employee or (iii) hire or assist any other Person in hiring any Transferred Employee; provided, however, that this Section 6.10(a) shall not prohibit general solicitations for employment through advertisements or other means or apply without giving effect to any Employees that are not Transferred Employees extensions, renewals or Transferred Employees that are terminated by the Buyer modifications after the Closing Date.
(b) The date hereof), none of the Restricted Entities shall directly or indirectly solicit or enter into any agreement with any counterparty to a Specified Partner Agreement in respect of any services or products of the type covered by such Specified Partner Agreement. Each Seller Parties agree that, agrees that for the period commencing on the Closing Date and expiring on the third two year anniversary of the Closing Date, they none of the Restricted Entities shall not and shall direct any of their controlled Affiliates not to, engage, either directly or indirectly, alone indirectly solicit or enter into any agreement with others, as stockholders or otherwise any counterparty to an Assigned Partner Agreement (other than a Specified Partner Agreement) in any Competitive Business, including, for the avoidance of doubt, through the use respect of any knowledge services or products of the Business to promote business with advertisers and agencies through competitors of the Business. Notwithstanding the foregoing, the Seller Parties and their Affiliates shall be permitted to acquire any Person, division or business that competes with the Business if the good faith, projected revenue of type covered by such Person, division or business that is attributable to the business of the Business for the calendar year in which the sale is consummated is less than (i) $5 million and (ii) ten percent (10%) of the aggregate, good faith, projected revenue of the Person, division or business for the same calendar year, provided that the portion of the acquired Person, division or business that is attributable to the business that competes with the Business shall be terminated or disposed of within six (6) months of such acquisitionAssigned Partner Agreement.
(cd) Buyer Purchaser agrees that, that for the period commencing on the Closing Date and expiring on the second anniversary of 18 months after the Closing Date, Buyer shall not and shall not direct or in the case of the facility in Alabang Philippines, 3 years after the Closing Date, neither it nor any of their controlled its respective Affiliates towill, (i) directly or indirectly, solicit for employment or any similar arrangement or hire any employee of any Selling Entity at a Seller Party work location that is or any was shared after the Closing Date with Transferred Business Employees or other employees of the Purchaser and its Affiliates who is not a Transferred Employee or (ii) hire or assist any other Person in hiring any such employee; Affiliates, provided, however, that this Section 6.10(d6.7(d) shall not (i) apply to any employee who has ceased to be employed by any Selling Entity for a period of at least six months prior to commencement of employment discussions between Purchaser and such persons or (ii) prohibit general solicitations for employment through advertisements or other means or apply to not targeted at such employees (and the hiring of any persons identified by such employee who is terminated by a general solicitations).
(e) Each Seller Party or any of its Affiliates agrees that for the period commencing on the Closing Date and expiring 18 months after the Closing Date, neither it nor any of its respective Affiliates will, directly or indirectly, solicit for employment or any similar arrangement or hire any employee of Purchaser sharing a work location that is or was shared after the Closing with employees of a Selling Entity, provided, however, that this Section 6.7(e) shall not (i) apply to any employee who has ceased to be employed by Purchaser for a period of at least six months prior to commencement of employment discussions between Seller and such persons or (ii) prohibit general solicitations for employment through advertisements or other means not targeted at such employees (and the hiring of any persons identified by such general solicitations).
(f) Until the earlier of the Closing and the date that is 18 months after the termination date (in the event that this Agreement is terminated for any reason pursuant to Article IX), Purchaser and its Affiliates shall not, directly or indirectly, hire or solicit any Business Employee or other employee of any Selling Entity sharing a work location with a Business Employee that Purchaser or its Affiliates come into contact in connection with the transactions contemplated by this Agreement, any Ancillary Agreement or the Agent Bank Agreement, regarding the employment of such person or the provision of other services by such person (except as contemplated by this Agreement); provided, however, that this Section 6.7(f) shall not (i) apply to any Business Employee or other employee who has ceased to be employed by any Selling Entity for a period of at least six months prior to commencement of employment discussions between Purchaser and such person, (ii) prohibit general solicitations for employment through advertisements or other means not targeted at such individuals (and the hiring of any persons identified by such general solicitations) or (iii) prohibit the hiring of any Business Employee or other employee who (A) has applied for employment with Purchaser or its Affiliates prior to the date hereof and (B) was not solicited by Purchaser or its Affiliates in violation of the Confidentiality Agreement.
(g) Purchaser and Sellers understand and acknowledge that (i) it would be difficult to calculate damages from any breach of the obligations under this Section 6.7, (ii) injury from any such breach would be irreparable and impossible to measure and (iii) the remedy at law for any breach or threatened breach of this Section 6.7 would therefore be an inadequate remedy and, accordingly, Purchaser and Sellers shall, in addition to all other available remedies (including, without limitation, seeking such damages as either can show it has sustained by reason of such breach and/or the exercise of all other rights either has under this Agreement), be entitled to seek injunctive relief, specific performance and other equitable remedies without the necessity of showing actual damages or posting bond.
(h) Purchaser and Sellers understand and acknowledge that the restrictive covenants and other agreements contained in this Section 6.7 are an essential part of this Agreement and the transactions contemplated hereby and thereby. It is the intention of the parties that, if any of the restrictions or covenants contained herein are held to cover a geographic area or to be for a length of time that is not permitted by Applicable Law, 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 of no effect, but to the extent that such provision would then be valid or enforceable under Applicable Law, such provision shall be construed and interpreted or reformed to provide for a restriction or covenant having the maximum enforceable geographic area, time period and other provisions as shall be valid and enforceable under Applicable Law.
(i) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 6.7 shall apply to any Restricted Entity that is or becomes an Affiliate of Restricted Entity following the date that neither Sellers (with respect to their Subsidiaries) nor HSBC Holdings Plc (with respect to other Affiliates of Sellers), directly or indirectly, own 20% or more of the outstanding voting power of such Person or no longer have the power to appoint a majority of the members of the board of directors or comparable governing body of such Person; provided that the primary purpose of Sellers or HSBC Holdings Plc ceasing to have such ownership or power is not evading the restrictions set forth in this Section 6.7.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Capital One Financial Corp)
Non-Solicitation; Non-Competition. (a) The Seller Parties agree Each party agrees that, from the date of this Agreement until the Anniversary Date, neither it nor any of its directors, officers, managers, managing members, partners and employees, agents, advisors or subsidiaries (collectively, “Representatives”) will directly or indirectly, solicit for employment or employ or cause to leave the employ of the other party or any of its Affiliates any individual serving as an officer of the other party or any employee of the other party without obtaining the prior written consent of the other party (the “Restricted Persons”),which limitation shall not apply to any solicitation by the Purchaser or its Affiliates of current Seller employees John McClain, Jack Parkex, xxx Xxxx Zox (xxxx, x “Key Exxxxxxx”). The foregoing shall not preclude either party from hiring or soliciting: (i) any person as a result of placing general solicitation advertisements (including, without limitation, any general recruitment efforts conducted by any recruitment agency), in each case not specifically targeted at hiring any Restricted Persons, (ii) any persons with whom a party has had contact regarding possible employment prior to the date of this Agreement , (ii) persons who are referred to either party by search firms, employment agencies or other similar entities provided that such entities have not been specifically instructed to solicit any Restricted Persons, (iv) persons who contact either party on his or her own accord with no solicitation or (v) persons who have not been employed by a party for a period of six months prior to the date such persons were first solicited for employment by the other party .
(b) Seller acknowledges that: (i) the Purchaser is acquiring certain confidential information pertaining to the Funds through the transactions contemplated by this Agreement (“Funds Confidential Information”) consisting of any and all: (A) nonpublic information concerning each of the Funds and each of their respective shareholders, including the identity of shareholders of the Funds; (B) information concerning the Funds, however documented, and (C) notes, analysis, compilations, studies, summaries, working papers or other materials prepared by or for Seller containing, based on, in whole or in part, or derived from any information included in clauses (A) or (B) above; (ii) the products and services comprising the Funds are, or may be, marketed throughout the United States; (iii) the Funds compete with other businesses that are or could be located in any part of the United States; (iv) Purchaser has required the covenants set forth in this Section 6.1 as a condition to Purchaser entering into this Agreement; (v) the covenants set forth in this Section 6.1 are reasonable and necessary to protect and preserve the Business; and (vi) Purchaser will be irreparably harmed and damaged if any of the covenants in this Section 6.1 are breached. Anything contained herein to the contrary notwithstanding, Seller shall retain equal rights in, and be permitted to continue to use, all Funds Confidential Information concerning clients of the Funds that are also clients of other funds, investment vehicles, or accounts managed by the Seller or its Affiliates.
(c) Seller agrees that, except as otherwise provided in this Section 6.1, from and after the Closing, Seller will not, and will not permit any of its Affiliates to, at any time, disclose to any unauthorized Person or use for its own account (except as required as part of maintaining business records) or for the period commencing on benefit of any third party any Funds Confidential Information, whether it has such information in memory or embodied in a writing or other physical form, without Purchaser’s prior written consent, unless and to the extent that: (i) the Funds Confidential Information is or becomes generally known to the public other than as a result of a breach of the provisions of this Section 6.1 by Seller; (ii) the public disclosure thereof is required by a court of competent jurisdiction or otherwise by Applicable Law; (iii) the disclosure thereof is necessary in connection with the enforcement of this Agreement or (iv) the disclosure thereof is required by Applicable Law, regulation, subpoena, court order, inquiry or request from a court or an administrative or regulatory agency or self-regulatory organization having competent jurisdiction. If Seller becomes legally compelled to disclose any Funds Confidential Information, Seller shall: (A) provide Purchaser with prior written notice (to the extent not prohibited under Applicable Law) of the need for such disclosure and the required content of such disclosure; (B) if disclosure is required, furnish only that portion of the Funds Confidential Information which, upon the advice of counsel to the Seller, is legally required; and (C) reasonably cooperate with Purchaser, at Purchaser’s request and sole expense, to enable Purchaser to obtain reasonable assurances that confidential treatment will be accorded to the Funds Confidential Information. As requested by Purchaser, Seller agrees to deliver to Purchaser at any time at or following the Closing, a copy or an original of any or all Funds Confidential Information, whether in hardcopy, electronic, disk or other form, that may be in the Seller’s possession or control; provided, however, Seller may retain a copy of such Funds Confidential Information solely for the purposes of, and to the extent necessary in connection with, any audit, accounting matter, investigation, legitimate business recordkeeping, litigation or compliance or regulatory requirement applicable to Seller or any of its Affiliates. The obligations in this Section 6.1(c) shall survive the Closing Date indefinitely.
(d) For and expiring on in consideration of the second anniversary payments to be received under this Agreement in connection with the Transactions, and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Seller agrees that, until: (i) two years from the Closing Date, if pursuant to the terms of Section 1.1 and 1.3, Purchaser is obligated to pay only the Initial Purchase Price, and (ii) two years from the Anniversary Date, if pursuant to the terms of Section 1.1 and 1.3 Purchaser is obligated to pay the Initial Purchase Price and any Additional Payments, it shall not, and shall not permit any of its subsidiaries to, directly or indirectly, whether for its own account or the account of another Person, invest in, own, manage, operate, finance or control or participate in the ownership, management, operation, financing or control of any entity that derived more than one-third (1/3) of its gross revenues for the most recently-completed fiscal year from mutual funds with a strategy and investment philosophy substantially similar to the strategy and investment philosophy of either fund as of the Closing, provided, however, that the forgoing limitation shall not apply to activities undertaken (i) by Seller in connection with their investment of client assets; (ii) by the Seller in connection with the conduct of its businesses as of the Closing Date, they shall not and shall not direct any of their controlled Affiliates to, (i) induce or encourage any Employee to reject Buyer’s offer of employment, (ii) solicit for employment or any similar arrangement any Transferred Employee or (iii) hire or assist any other Person in hiring any Transferred Employee; provided, however, that this Section 6.10(a) shall not prohibit general solicitations for employment through advertisements or other means or apply to any Employees that are not Transferred Employees or Transferred Employees that are terminated by the Buyer after the Closing Date.
(b) The Seller Parties agree that, for the period commencing on the Closing Date and expiring on the third anniversary of the Closing Date, they shall not and shall direct any of their controlled Affiliates not to, engage, either directly or indirectly, alone or with others, as stockholders or otherwise in any Competitive Business, including, for the avoidance of doubt, through by Seller in the use acquisition of any knowledge or merger with another investment manager that derived less than one-third (1/3) of its gross revenues for the most recently-completed fiscal year from mutual funds with a strategy and investment philosophy substantially similar to the strategy and investment philosophy of either fund as of the Business to promote business with advertisers and agencies through competitors Closing.
(e) From the date of this Agreement until the Business. Notwithstanding the foregoingClosing, the Seller Parties shall not (and shall cause its Affiliates and their Affiliates shall be permitted respective officers, managers and employees not to): (1) take or fail to acquire take any Personactions, division (2) act in bad faith, with willful misconduct, or business that competes with gross negligence, or (3) otherwise manage the Funds in any manner with the Business if intention, or the good faithreasonably foreseeable result, projected revenue of such Person, division or business that is attributable to the business of the Business for the calendar year in which the sale is consummated is less than (i) $5 million and (ii) ten percent (10%) of the aggregate, good faith, projected revenue of the Person, division or business for the same calendar year, provided that the portion of the acquired Person, division or business that is attributable to the business that competes with the Business shall be terminated or disposed of within six (6) months of such acquisition.
(c) Buyer agrees that, for the period commencing on artificially inflating the Closing Date and expiring on Net Revenues or otherwise circumvent the second anniversary terms of the Closing Date, Buyer shall not and shall not direct any of their controlled Affiliates to, (i) solicit for employment or any similar arrangement any employee of a Seller Party or any of its Affiliates who is not a Transferred Employee or (ii) hire or assist any other Person in hiring any such employee; provided, however, that Date Net Revenues as contemplated by this Section 6.10(d) shall not prohibit general solicitations for employment through advertisements or other means or apply to any such employee who is terminated by a Seller Party or any of its Affiliates after the Closing DateAgreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (Diamond Hill Investment Group Inc)
Non-Solicitation; Non-Competition. (a) The Seller Parties agree thatEach member of the Parent Group shall not, for the period commencing on the Closing Date and expiring on the second anniversary shall not permit, cause or encourage any of its respective Affiliates to, at any time prior to twenty-four (24) months from the Closing Date, they shall not and shall not direct directly or indirectly, except as set forth on Section 6.16(a) of the Parent Disclosure Schedule, solicit the employment or services of or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Transferred Business Employee or independent contractor of their controlled Affiliates tothe Transferred Entities as of Closing or any Person who has been an employee or an independent contractor of the Transferred Entities within the twelve (12)-month period immediately preceding the Closing Date, without Purchaser’s prior written consent, unless such Person has (i) induce been terminated by Purchaser or encourage any Employee of its Affiliates subsequent to reject Buyer’s offer of employment, the Closing or (ii) solicit for voluntarily terminated such Person’s own employment or engagement with Purchaser or any similar arrangement of its Affiliates subsequent to the Closing and who has not been employed or engaged by any Transferred Employee or Entity for a period of at least six (iii6) hire or assist any other Person in hiring any Transferred Employee; providedmonths prior to the date of such hire, however, that without Purchaser’s prior written consent. For purposes of this Section 6.10(a) 6.16(a), the term “solicit the employment or services” shall not prohibit be deemed to include generalized searches for employees through media advertisements of general solicitations for circulation, employment through advertisements search firms, open job fairs or other means or apply to any Employees that are otherwise and not Transferred Employees or Transferred Employees that are terminated by the Buyer after the Closing Datespecifically directed at such Persons.
(b) The Seller Parties agree thatAs a material inducement to Purchaser entering into this Agreement, for each member of the period commencing on Parent Group shall not, and shall not permit, cause or encourage any of its respective Affiliates to, directly or indirectly (whether by itself, through an Affiliate or in partnership or conjunction with any other Person), at any time prior to five (5) years from the Closing Date and expiring on (the third anniversary of the Closing Date“Non-Compete Period”), they shall not and shall direct any of their controlled Affiliates not to, engage, either directly or indirectly, alone either for itself or with othersfor any other Person, as stockholders own, manage, control, participate in, consult with, render services for, permit its name to be used or otherwise in any Competitive Business, including, for the avoidance of doubt, through the use of other manner engage in all or any knowledge of the Business to promote business with advertisers and agencies through competitors portion of the Business. Notwithstanding the foregoingFor purposes of this Section 6.16(b), the Seller Parties and their Affiliates term “participate” includes any direct or indirect interest in any enterprise, whether as an officer, director, employee, partner, sole proprietor, agent, Representative, independent contractor, seller, franchisor, franchisee, creditor, or owner; provided, that the foregoing activities shall be permitted to acquire any Personnot include (A) passive ownership of less than five percent (5%) of the stock of a publicly held corporation whose stock is traded on a national securities exchange or in the over the counter market, division (B) the acquisition of an entity or business that competes engages in a business competitive with the Business if the good faith, projected revenue of such Person, division or business that is attributable to the business as conducted as of the Business for date hereof, so long as (x) the calendar year in which revenue from such competitive operations does not exceed the sale is consummated is less than (i) lesser of either $5 million and (ii) 25,000,000 or ten percent (10%) of the aggregate, good faith, projected total revenue of the Person, division such entity or business for the same calendar year, provided that the portion of the acquired Person, division (as applicable) and (y) Parent or business that is attributable to the business that competes with the Business shall be terminated its applicable Affiliate sells or disposed of otherwise divests each competitive operation within six twelve (612) months of following such acquisition.
acquisition (c) Buyer agrees that, for the period commencing on unless such acquisition occurs more than four years and six months after the Closing Date and expiring on such disposition would occur after the second anniversary end of the Closing Datefive (5)-year period described in this Section 6.16(b), Buyer in which case Parent shall not and shall not direct be required to make such disposition), or (C) a Person’s continued employment by (or ownership in) any of the Transferred Entities and/or any of their controlled Subsidiaries. During the Non-Compete Period, Parent shall not, and shall cause its Affiliates not to, directly or indirectly through another Person (i) solicit for employment or service any similar arrangement any employee customer, supplier, licensee, licensor or other business relation of the Transferred Entities (a Seller Party “Business Client”) with respect to products or any services that have been provided by the Transferred Entities, are currently being provided by the Transferred Entities or which the Transferred Entities are currently in the process of its Affiliates who is not a Transferred Employee developing; or (ii) hire encourage, induce or assist solicit, or attempt to encourage, induce or solicit, any other Person in hiring any such employee; provided, however, that this Section 6.10(d) shall not prohibit general solicitations for employment through advertisements or other means or apply Business Client to any such employee who is terminated by a Seller Party or any of its Affiliates after cease doing business with the Closing DateTransferred Entities.
Appears in 1 contract
Non-Solicitation; Non-Competition. (a) The Seller Parties agree thatCompany acknowledges that it has extensive knowledge and a unique understanding of the Business, has been directly involved with the establishment and the continued development of the Business and has had access to proprietary and Confidential Information and that the Company is receiving sufficient consideration for the termination of the Company’s ownership interest in the Purchased Assets and the sale of the goodwill of the Business and that if it were to compete with Purchaser or any of its present or future subsidiaries or Affiliates in the licensing, development, production, marketing, commercialization or sale of any network, services or hardware (including tablets, tablet cases, charging racks, personal computer servers and related equipment) through which entertainment offerings (such as, trivia, sports, card and arcade games) are made available to end users (the “Interactive Entertainment Business”) following the Closing, great harm would come to Purchaser and those of its present or future subsidiaries and Affiliates engaged in the Interactive Entertainment Business, thereby substantially diminishing the value associated with the purchase of the Purchased Assets and the Business. As a material inducement of Purchaser to enter into this Agreement and in furtherance of the acquisition of the Purchased Assets and by virtue of the transactions contemplated hereby, and to more effectively protect the value of the Purchased Assets, including the goodwill of the Business, the Company agrees that:
(i) for a period commencing on of eight (8) years from the Closing Date and expiring on the second anniversary of the Closing Date, they shall not and shall not direct any of their controlled Affiliates to, (i) induce directly or encourage any Employee to reject Buyer’s offer of employmentindirectly, (ii) solicit for employment as employee, agent, stockholder, consultant, partner, director or any similar arrangement any Transferred Employee or (iii) hire or assist in any other Person capacity, own, manage, operate, control, render services to, or participate in hiring the ownership, management, operation or control of any Transferred Employeebusiness, whether in corporate, proprietorship or partnership form or otherwise, in the Interactive Entertainment Business, including any business substantially similar to the Business; provided, however, that the foregoing shall not apply to passive debt or equity interests in such a business provided such business has a class of publicly traded securities and the securities constitute not more than two percent (2%) of such outstanding securities.
(ii) for a period of three (3) years from the Closing Date, not to, directly or indirectly, hire or solicit any employee of Purchaser or encourage any such employee to leave such employment or hire any such employee who has left such employment, unless such employee is terminated by Purchaser prior to such action by the Company or any of its Affiliates or, if such employee terminated his or her employment with Purchaser voluntarily, at least six (6) months prior to such action by the Company or any of its Affiliates. Further, notwithstanding the foregoing, the restrictions set forth in this Section 6.10(a5.7(a)(ii) shall not prohibit general solicitations for employment through advertisements or other means or apply to a general solicitation which is not directed specifically to any Employees that are not Transferred Employees or Transferred Employees that are terminated by the Buyer after such employees.
(iii) for a period of three (3) years from the Closing Date, not to solicit any Person who is a client or a customer of the Company or Purchaser or any of Purchaser’s Affiliates as of the Closing Date for the purposes of providing any products or services of a type substantially similar to any of those provided by the Company prior to the Closing Date or by Purchaser or any of Purchaser’s Affiliates.
(b) If any provision contained in this Section 5.7 is for any reason held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect any other provisions of this Section 5.7, but this Section 5.7 will be construed as if such invalid, illegal or unenforceable provision had never been contained herein. It is the intention of the parties that if any of the restrictions or covenants contained herein is held to cover a geographic area or to be for a length of time which is not permitted by applicable law, or in any way construed to be too broad or to any extent invalid, such provision will not be construed to be null, void and of no effect, but to the extent such provision would be valid or enforceable under applicable law, a court of competent jurisdiction will construe and interpret or reform this Section 5.7 to provide for a covenant having the maximum enforceable geographic area, time period and other provisions (not greater than those contained herein) as will be valid and enforceable under such applicable law. The Seller Parties agree thatCompany acknowledges that the restrictions set forth in this Section 5.7 are reasonable, valid and necessary for the period commencing on the Closing Date and expiring on the third anniversary protection of the Closing Date, they shall not legitimate interest of Purchaser and shall direct Purchaser would be irreparably harmed by any breach of their controlled Affiliates not to, engage, either directly this Section 5.7 and that there would be no adequate remedy at law or indirectly, alone or with others, as stockholders or otherwise in damages to compensate Purchaser for any Competitive Business, including, for such breach. The Company agrees that Purchaser will be entitled to injunctive relief requiring specific performance by the avoidance breaching party of doubt, through the use of any knowledge of the Business to promote business with advertisers this Section 5.7 and agencies through competitors of the Business. Notwithstanding the foregoing, the Seller Parties and their Affiliates shall be permitted to acquire any Person, division or business that competes with the Business if the good faith, projected revenue of such Person, division or business that is attributable consent to the business of the Business for the calendar year in which the sale is consummated is less than (i) $5 million and (ii) ten percent (10%) of the aggregate, good faith, projected revenue of the Person, division or business for the same calendar year, provided that the portion of the acquired Person, division or business that is attributable to the business that competes with the Business shall be terminated or disposed of within six (6) months of such acquisitionentry thereof.
(c) Buyer agrees that, for the period commencing on the Closing Date and expiring on the second anniversary of the Closing Date, Buyer shall not and shall not direct any of their controlled Affiliates to, (i) solicit for employment or any similar arrangement any employee of a Seller Party or any of its Affiliates who is not a Transferred Employee or (ii) hire or assist any other Person in hiring any such employee; provided, however, that this Section 6.10(d) shall not prohibit general solicitations for employment through advertisements or other means or apply to any such employee who is terminated by a Seller Party or any of its Affiliates after the Closing Date.
Appears in 1 contract
Non-Solicitation; Non-Competition. (a) The Seller Parties You agree that, for a period of eighteen (18) months after the period commencing on Resignation Date, you will not, without the Closing Date and expiring on the second anniversary prior written consent of the Closing Date, they shall not and shall not direct any Compensation Committee of their controlled Affiliates to, the Board of Directors of NCR (the “Compensation Committee”) (i) induce directly or encourage through others recruit, hire, solicit or induce, or attempt to induce, any Employee member of NCR’s “Business Leader’s Council” to reject Buyer’s offer of employment, terminate their employment with or otherwise cease their relationship with NCR; (ii) personally, or personally direct another on his own behalf to, canvass or solicit for employment or business in any similar arrangement of the following product and service areas: point of sale systems, ATMs, check issuing, and scalable data warehousing with any Transferred Employee then-current customer of NCR or (iii) hire become an employee, proprietor, partner, greater than three (3) percent shareholder, principal or assist agent of, or a consultant or advisor to any of NCR’s direct, major competitors, or their subsidiaries or affiliates, as previously identified in writing by you on February 23, 2005 as “Competing Organizations” for purposes of the noncompetition provisions in NCR benefit plans. The parties hereto recognize that Hewlett Packard (“HP”) is not on the current list of Competing Organizations and as such NCR does not and will not assert any rights under the existing non-compete agreements as they relate to your potential employment with HP. If you breach any of the provisions of Paragraph 2 or 3, NCR, in addition to its other Person in hiring remedies, will be released from all obligations it may have under Paragraph 1 and shall be entitled to cancel the stock options if outstanding, and you will return immediately any Transferred Employee; provided, however, amounts realized by you from the exercise of the stock options. You acknowledge that this Section 6.10(a) shall restriction is reasonable in both scope and duration and will not prohibit general solicitations for employment through advertisements or other means or apply in any manner prevent you from earning a livelihood following your departure from NCR. Inasmuch as your breach of these terms would cause irreparable harm to any Employees that are not Transferred Employees or Transferred Employees that are terminated by the Buyer after the Closing Date.
(b) The Seller Parties agree thatNCR, for the period commencing on the Closing Date NCR may obtain an injunction and expiring on the third anniversary restraining order prohibiting further violations, provided NCR has given you written notice of the Closing Date, they shall not and shall direct any of their controlled Affiliates not to, engage, either directly or indirectly, alone or with others, as stockholders or otherwise in any Competitive Business, including, for the avoidance of doubt, through the use of any knowledge of the Business to promote business with advertisers and agencies through competitors of the Business. Notwithstanding the foregoing, the Seller Parties and their Affiliates shall be permitted to acquire any Person, division or business that competes with the Business if the good faith, projected revenue of such Person, division or business that is attributable to the business of the Business for the calendar year in which the sale is consummated is less than (i) $5 million and (ii) ten percent (10%) of the aggregate, good faith, projected revenue of the Person, division or business for the same calendar year, provided that the portion of the acquired Person, division or business that is attributable to the business that competes with the Business shall be terminated or disposed of within six (6) months of such acquisitionclaimed breach.
(c) Buyer agrees that, for the period commencing on the Closing Date and expiring on the second anniversary of the Closing Date, Buyer shall not and shall not direct any of their controlled Affiliates to, (i) solicit for employment or any similar arrangement any employee of a Seller Party or any of its Affiliates who is not a Transferred Employee or (ii) hire or assist any other Person in hiring any such employee; provided, however, that this Section 6.10(d) shall not prohibit general solicitations for employment through advertisements or other means or apply to any such employee who is terminated by a Seller Party or any of its Affiliates after the Closing Date.
Appears in 1 contract
Samples: Resignation Agreement (NCR Corp)
Non-Solicitation; Non-Competition. (a) The Seller Parties agree that, for the For a period commencing on the Closing Date and expiring on the second anniversary of two (2) years following the Closing Date, they Seller shall not not, and shall not direct permit any of their controlled Affiliates its Subsidiaries to, directly or indirectly solicit or hire (or cause to be directly or indirectly solicited or hired), whether as an employee, consultant, independent contractor or otherwise, any Business Employee as of immediately prior to the Closing; provided that, the foregoing restriction shall not apply to (i) induce generalized searches by use of advertising or encourage recruiting efforts (including the use of search firms) that are not specifically targeted at such Business Employees or hiring any Employee individual who responds to reject Buyer’s offer of employmentany such general solicitation, (ii) solicit for employment soliciting or hiring any Business Employee who is no longer employed by Buyer or any similar arrangement of its Affiliates and has not been so employed by Buyer or its Affiliates for at least one hundred and eighty (180) days (provided, that such one hundred and eighty (180) day period shall not apply with respect to any Transferred Business Employee who is no longer employed by Buyer or its Affiliates as a result of broad-based terminations or layoffs of Business Employees) or (iii) hire soliciting or assist any other Person in hiring any Transferred Employeesuch employee who contacts Seller or its Subsidiaries on his or her own initiative regarding employment without any solicitation or encouragement from Seller or its Subsidiaries.
(b) For a period of two (2) years following the Closing Date, Buyer shall not, and shall not permit any of its Affiliates (including, after the Closing, the Group Companies) to, directly or indirectly solicit or hire (or cause to be directly or indirectly solicited or hired), whether as an employee, consultant, independent contractor or otherwise, any employee of the Retained Companies as of immediately prior to the Closing (other than the Business Employees); provided that, the foregoing restriction shall not apply to (i) generalized searches by use of advertising or recruiting efforts (including the use of search firms) that are not specifically targeted at such employees or hiring any individual who responds to any such general solicitation or (ii) soliciting or hiring any such employee who is no longer employed by any of the Retained Companies and has not been so employed by the Retained Companies for at least one hundred and eighty (180) days (provided, that such one hundred and eighty (180) day period shall not apply with respect to any employee who is no longer employed by the Retained Companies as a result of broad-based terminations or layoffs of such employees) or (iii) soliciting or hiring any such employee who contacts Buyer or its Affiliates on his or her own initiative regarding employment without any solicitation or encouragement from Buyer or its Affiliates.
(c) For a period of four (4) years following the Closing Date, Seller shall not, and shall cause its Subsidiaries (including the Retained Companies) not to, directly or indirectly, engage in any Competitive Activity (including (x) as a principal or for its own account or solely or jointly with others (or as a shareholder in any corporation or joint stock association) or (y) by holding any equity interests in any Person that engages in any Competitive Activity); provided, however, that this Section 6.10(a) the foregoing shall not prohibit general solicitations for employment through advertisements restrict Seller or other means or apply to any Employees that are not Transferred Employees or Transferred Employees that are terminated by the Buyer after the Closing Date.
(b) The Seller Parties agree that, for the period commencing on the Closing Date and expiring on the third anniversary of the Closing Date, they shall not and shall direct any of their controlled Affiliates not toits Subsidiaries from (i) acquiring or owning as an investment, engage, either directly or indirectly, alone securities or with others, as stockholders or otherwise any indebtedness of any company that is engaged in any Competitive BusinessActivity if Seller or such Subsidiary (A) does not, includingdirectly or indirectly, beneficially own in the aggregate more than five percent (5%) of such securities outstanding or indebtedness of such company and (B) acquires or owns such securities or indebtedness for passive investment purposes only or (ii) acquiring and continuing to hold or own any business or Person engaged in any Competitive Activity if such Competitive Activity accounts for the lesser of (1) fifteen percent (15%) of such business’ or Person’s consolidated annual revenues and (2) five million dollars ($5,000,000) in such annual revenues (regardless of the percentage represented thereby), in each case during the fiscal year prior to such acquisition being made (or, if earlier, the entry into the definitive agreement providing for the making of such acquisition). In the event Seller or any of its Subsidiaries acquire any business or Person, the acquisition of which would violate this Section 5.16(c) (but for this sentence), Seller or such Subsidiary shall not be in violation of this Section 5.16(c) if as soon as practicable, but in any event within sixty (60) days after the closing of such acquisition, Seller or such Subsidiary commences efforts to divest, and within twelve (12) months after the closing of such acquisition, Seller or such Subsidiary consummates such divestiture of, the portion of such acquired Person or business that engages in any Competitive Activity to an unaffiliated third party to the extent required in order to comply with this Section 5.16(c) (but for this sentence). In the event Seller is seeking to effect a divestiture pursuant to the immediately preceding sentence, Seller shall permit Buyer to submit an offer for such acquisition and shall consider in good faith Buyer’s offer. “Competitive Activities” means all activities that are competitive with the Business as conducted as of the Closing Date (after giving effect to the Pre-Closing Business Transfers), which, for the avoidance of doubt, through exclude the use of any knowledge of the Business to promote business with advertisers and agencies through competitors of the Business. Notwithstanding the foregoing, the Seller Parties and their Affiliates shall be permitted to acquire any Person, division or business that competes with the Business if the good faith, projected revenue of such Person, division or business that is attributable to the business of the Business for the calendar year in which the sale is consummated is less than (i) $5 million and (ii) ten percent (10%) of the aggregate, good faith, projected revenue of the Person, division or business for the same calendar year, provided that the portion of the acquired Person, division or business that is attributable to the business that competes with the Business shall be terminated or disposed of within six (6) months of such acquisitionRetained ESOL Businesses.
(c) Buyer agrees that, for the period commencing on the Closing Date and expiring on the second anniversary of the Closing Date, Buyer shall not and shall not direct any of their controlled Affiliates to, (i) solicit for employment or any similar arrangement any employee of a Seller Party or any of its Affiliates who is not a Transferred Employee or (ii) hire or assist any other Person in hiring any such employee; provided, however, that this Section 6.10(d) shall not prohibit general solicitations for employment through advertisements or other means or apply to any such employee who is terminated by a Seller Party or any of its Affiliates after the Closing Date.
Appears in 1 contract
Non-Solicitation; Non-Competition. (a) The Seller Parties agree that, for the For a period commencing on the Closing Date and expiring on the second anniversary of two (2) years following the Closing Date, they Parent shall not not, and shall not direct permit any of their controlled Affiliates Retained Entity to, directly or indirectly, solicit or hire (ior cause to be directly or indirectly solicited or hired) induce or encourage any Employee to reject Buyer’s offer of employment, (ii) solicit for employment or any similar arrangement any Transferred Employee or (iii) hire or assist any other Person in hiring any Transferred Business Employee; providedprovided that, however, that this Section 6.10(a) the foregoing restriction shall not prohibit general solicitations for employment through advertisements or other means or apply to any Employees (A) generalized searches by use of advertising or recruiting efforts (including the use of search firms) that are not Transferred Employees specifically targeted at such Business Employees, or Transferred Employees hiring any such Business Employee who responds to any such general solicitation; or (B) soliciting or hiring any such Business Employee who is no longer employed by Buyer or any of its Affiliates and has not been so employed by Buyer or its Affiliates for at least one hundred and twenty (120) days (provided, that are terminated such one hundred and twenty (120) day period shall not apply with respect to any such Business Employee who is no longer employed by the Buyer after the Closing Dateor its Affiliates as a result of broad-based terminations or layoffs of such Business Employees); or (C) soliciting or hiring any such Business Employee who contacts Parent or any Retained Entity on his or her own initiative regarding employment without any solicitation or encouragement from Parent or such Retained Entity.
(b) The Seller Parties agree that, for the For a period commencing on the Closing Date and expiring on the third anniversary of two (2) years following the Closing Date, they Buyer shall not not, and shall direct any of their cause its controlled Affiliates (including, after the Closing, the Transferred Companies) not to, engage, either directly or indirectly, alone solicit or hire (or cause to be directly or indirectly solicited or hired) as an employee or engage as a consultant any employee of any Retained Entity with otherswhom Buyer first comes in contact or who first becomes known to Buyer, as stockholders in each case, in connection with the transactions contemplated by this Agreement; provided that, the foregoing restriction shall not apply to (A) generalized searches by use of advertising or otherwise recruiting efforts (including the use of search firms) that are not specifically targeted at such employees, or hiring any such employee who responds to any such general solicitation; or (B) soliciting or hiring any such employee who is no longer employed by a Retained Entity or any of its Affiliates and has not been so employed by a Retained Entity or its Affiliates for at least one hundred and twenty (120) days (provided, that such one hundred and twenty (120) day period shall not apply with respect to any such employee whose employment has been terminated by a Retained Entity or its Affiliates without cause).
(c) For a period of thirty (30) months following the Closing Date, Parent shall not, and shall cause the Retained Entities not to, directly or indirectly, (i) engage in, or for the direct benefit of Parent or any of the Retained Entities, assist others in engaging in, any Competitive Activity in the Territory (whether through consultation, advisory services, representation on a board of directors or similar governing body); or (ii) have a financial or ownership interest in any Person that engages directly or indirectly in any Competitive BusinessActivity in the Territory in any capacity, includingincluding as a partner, for stockholder, member, agent, trustee or consultant; provided, that, in each case, if the avoidance acquisition of doubtsuch Person is not a Competitive Activity, through then ownership of such Person and the use engagement in the acquired business of any knowledge of the Business such Person, shall be deemed not to promote business with advertisers and agencies through competitors of the Businessviolate this Section 5.17(c). Notwithstanding the foregoing, Parent and the Seller Parties and their Affiliates shall be permitted to Retained Entities may directly or indirectly, acquire or own as an investment securities or any Person, division or business that competes with the Business if the good faith, projected revenue indebtedness of such Person, division or business any Person that is attributable to engaged in a Competitive Activity in the business of Territory if Parent or any Retained Entity does not, directly or indirectly, beneficially own in the Business for the calendar year in which the sale is consummated is less aggregate more than (i) $5 million and (ii) ten percent (10%) of the aggregateoutstanding securities or indebtedness of such Person. For the avoidance of doubt, good faiththe foregoing shall not restrict Parent with respect to exercising or satisfying any of its rights or obligations under the Parent Commercial Agreement. Buyer (1) acknowledges that Parent and the Retained Entities operate, projected revenue of and the PersonRetained Business is comprised of, division or business for the same calendar yeara content, provided that the portion of the acquired Person, division or platform and services business that is attributable separate and distinct from the Business, and (2) acknowledges and agrees that nothing in this Section 5.17(c) is intended to limit, and the business restrictions set forth in this Section 5.17(c) shall have no effect on the ability of, Parent and the Retained Entities to continue to operate the Retained Business, including the sales, marketing, development and enhancement of the content, platform and services of the Retained Business (including through acquisitions that competes do not constitute a Competitive Activity, partnerships or the integration of products of the Retained Business with the Business shall be terminated or disposed of within six (6) months content partners and sales of such acquisitionplatform and services directly to customers). This Section 5.17(c) is not intended to restrict the activities of any stockholders or Affiliates of Parent (other than Parent and its Subsidiaries, including through their non-independent directors, officers and employees).
(cd) Buyer agrees that, for For purposes of this Section 5.17: (i) “Competitive Activity” means (x) the period commencing on operation of the Business as of the Closing Date and expiring on or (y) the second anniversary of the Closing Date, Buyer shall not and shall not direct any of their controlled Affiliates to, (i) solicit for employment or any similar arrangement any employee acquisition of a Seller Party or any business whose operations are primarily constituted of its Affiliates who is not a Transferred Employee or learning management system that competes directly with the Business; and (ii) hire or assist any other Person in hiring any such employee; provided, however, that this Section 6.10(d) shall not prohibit general solicitations for employment through advertisements or other “Territory” means or apply to any such employee who is terminated by a Seller Party or any of its Affiliates after the Closing Dateworldwide.
Appears in 1 contract
Non-Solicitation; Non-Competition. (a) The Seller Parties agree that, for the For a period commencing on the Closing Date and expiring on the second anniversary of three (3) years following the Closing Date, they Seller shall not not, and shall not direct permit any of their controlled Affiliates its Subsidiaries to, directly or indirectly solicit or hire (or cause to be directly or indirectly solicited or hired) any Business Employee as of immediately prior to the Closing; provided that, the foregoing restriction shall not apply to (i) induce generalized searches by use of advertising or encourage recruiting efforts (including the use of search firms) that are directed to the general public and not specifically targeted at such Business Employees or hiring any Employee individual who responds to reject Buyer’s offer of employmentany such general solicitation, (ii) solicit for employment soliciting or hiring any Business Employee who is no longer employed by Buyer or any similar arrangement of its Affiliates at the time of Seller’s or its Subsidiaries’ first contact with him or her regarding employment with Seller after the Closing and who has not been so employed by Buyer or its Affiliates for at least ninety (90) days (provided, that such ninety (90) day period shall not apply with respect to any Transferred Business Employee who is no longer employed by Buyer or its Affiliates as a result of broad-based terminations or layoffs of Business Employees) or (iii) hire soliciting or assist any other Person in hiring any Transferred EmployeeBusiness Employee who contacts Seller or its Subsidiaries on his or her own initiative regarding employment without any solicitation or encouragement from Seller or its Subsidiaries.
(b) For a period of three (3) years following the Closing Date, Buyer shall not, and shall not permit any of its Affiliates (including, after the Closing, the Group Companies) to, directly or indirectly solicit or hire (or cause to be directly or indirectly solicited or hired) any employee of the Retained Companies as of immediately prior to the Closing (other than the Business Employees); provided that, the foregoing restriction shall not apply to (i) generalized searches by use of advertising or recruiting efforts (including the use of search firms) that are directed to the general public and not specifically targeted at such employees or hiring any individual who responds to any such general solicitation, (ii) soliciting or hiring any such employee who is no longer employed by any of the Retained Companies at the time of Buyer’s or its Affiliates’ first contact with him or her regarding employment with Buyer after the Closing and who has not been so employed by the Retained Companies for at least ninety (90) days (provided, that such ninety (90) day period shall not apply with respect to any employee who is no longer employed by the Retained Companies as a result of broad-based terminations or layoffs of such employees) or (iii) soliciting or hiring any such employee who contacts Buyer or its Affiliates on his or her own initiative regarding employment without any solicitation or encouragement from Buyer or its Affiliates.
(c) For a period of three (3) years following the Closing Date, Seller shall not, and shall cause its Subsidiaries not to, engage in, or own, manage, operate or control any Person engaged in, any Competitive Activity; provided, however, that this Section 6.10(a) the foregoing shall not prohibit general solicitations for employment through advertisements restrict Seller or other means or apply to any Employees that are not Transferred Employees or Transferred Employees that are terminated by the Buyer after the Closing Date.
(b) The Seller Parties agree that, for the period commencing on the Closing Date and expiring on the third anniversary of the Closing Date, they shall not and shall direct any of their controlled Affiliates not toits Subsidiaries from (i) acquiring or owning as an investment, engage, either directly or indirectly, alone securities or with others, as stockholders or otherwise any indebtedness of any company that is engaged in any Competitive BusinessActivity if Seller or such Subsidiary does not, includingdirectly or indirectly, for beneficially own in the avoidance of doubt, through the use of any knowledge aggregate more than fifteen percent (15%) of the Business to promote business with advertisers and agencies through competitors of the Business. Notwithstanding the foregoing, the Seller Parties and their Affiliates shall be permitted to acquire any Person, division outstanding securities or business that competes with the Business if the good faith, projected revenue indebtedness of such Person, division company or business that is attributable to the business of the Business for the calendar year in which the sale is consummated is less than (i) $5 million and (ii) acquiring and continuing to hold or own any business or Person engaged in any Competitive Activity if (x) such Competitive Activity accounts for less than ten percent (10%) of such business’s or Person’s consolidated annual revenues and (y) Seller’s aggregate consolidated annual revenues attributable to Competitive Activities is less than ten million dollars ($10,000,000) during the aggregatefiscal year prior to such acquisition being made (or, good faithif earlier, projected revenue the entry into the definitive agreement providing for the making of such acquisition). In the event Seller or any of its Subsidiaries acquires any business or Person, division the acquisition of which would violate this Section 5.13(c) but for this sentence, Seller or business for such Subsidiary shall not be in violation of this Section 5.13(c) if as soon as practicable, but in any event within ninety (90) days after the same calendar yearclosing of such acquisition, provided that Seller or such Subsidiary commences efforts to divest, and within twelve (12) months after the closing of such acquisition, Seller or such Subsidiary consummates such divestiture of, the portion of the such acquired Person, division Person or business required in order to comply with this Section 5.13(c) (but for this sentence). “Competitive Activities” means any activities that is attributable to the business that competes compete with the Business shall be terminated as conducted as of the date hereof or disposed of within six (6) months of such acquisition.
(c) Buyer agrees that, for the period commencing on the Closing Date and expiring on the second anniversary as conducted as of the Closing Date, Buyer shall not and shall not direct any of their controlled Affiliates to, (i) solicit for employment or any similar arrangement any employee of a Seller Party or any of its Affiliates who is not a Transferred Employee or (ii) hire or assist any other Person in hiring any such employee; provided, however, that this Section 6.10(d) shall not prohibit general solicitations for employment through advertisements or other means or apply to any such employee who is terminated by a Seller Party or any of its Affiliates after the Closing Date.
Appears in 1 contract
Non-Solicitation; Non-Competition. (a) The Seller Parties agree that, for the For a period commencing on the Closing Date and expiring on the second anniversary of twelve (12) months following the Closing Date, they neither Buyer nor any of its Affiliates shall solicit for hire any Person who as of the Closing Date is employed by, or who has within the last six (6) months been employed by, Seller or any of its Affiliates (except for Employees); provided that such undertaking shall not and shall not direct any of their controlled Affiliates to, apply to (i) induce general solicitations by Buyer or encourage any Employee to reject Buyer’s offer of employment, its Affiliates; (ii) solicit for employment general solicitations undertaken by a third party on behalf of Buyer or any similar arrangement any Transferred Employee or of its Affiliates without a specific request to recruit such Person and (iii) hire or assist any other Person in hiring any Transferred Employee; provided, however, that this Section 6.10(a) shall not prohibit general solicitations for whose employment through advertisements or other means or apply to any Employees that are not Transferred Employees or Transferred Employees that are is terminated by the Buyer after following the Closing Date(without prior solicitation in violation of this Section).
(b) The Seller Parties agree that, for the For a period commencing on the Closing Date and expiring on the third anniversary of twelve (12) months following the Closing Date, they neither Seller nor any of its Affiliates shall solicit for hire any Person who after the Closing Date is employed by any of the Company or Buyer or their respective Subsidiaries, or who has within the last six (6) months been employed by Buyer or any of its Subsidiaries; provided that such undertaking shall not apply to (i) general solicitations by either Seller or any of its Affiliates; (ii) general solicitations undertaken by a third party on behalf of Seller or any of its Affiliates without a specific request to recruit such Person; and (iii) any Person whose employment is terminated following the Closing (without prior solicitation in violation of this Section).
(c) Seller agrees that it shall not, and shall direct any of their controlled Affiliates cause its Subsidiaries not to, engagefrom the Closing until the date that is twelve (12) months after the Closing Date (the “Noncompete Period”), either directly or indirectlyengage in Competitive Activities. For purposes of this Agreement, alone or with othersSeller shall be deemed to be engaged in “Competitive Activities” only if it owns more than 51% of the Equity Interests of, as stockholders or otherwise Controls, any Person that is engaged in any Competitive Business, including, for the business of monoline municipal bond financial guarantee insurance in the United States.
(d) For the avoidance of doubt, through the use of any knowledge of the Business to promote business with advertisers and agencies through competitors of the Business. Notwithstanding the foregoing, the nothing in this Section 6.8 shall prohibit Seller Parties and their Affiliates shall be permitted to acquire any Person, division or business that competes with the Business if the good faith, projected revenue of such Person, division or business that is attributable to the business of the Business for the calendar year in which the sale is consummated is less than (i) $5 million and (ii) ten percent (10%) of the aggregate, good faith, projected revenue of the Person, division or business for the same calendar year, provided that the portion of the acquired Person, division or business that is attributable to the business that competes with the Business shall be terminated or disposed of within six (6) months of such acquisition.
(c) Buyer agrees that, for the period commencing on the Closing Date and expiring on the second anniversary of the Closing Date, Buyer shall not and shall not direct any of their controlled Affiliates to, (i) solicit for employment or any similar arrangement any employee of a Seller Party or any of its Affiliates who is not a Transferred Employee or from acquiring any Person (ii) hire or assist any other Person in hiring any such employee; provided, however, that this Section 6.10(d) shall not prohibit general solicitations for employment through advertisements or other means or apply to any such employee who is terminated by a Seller Party or any interest in or assets of its Affiliates after any Person) or business or entering into any business combination with any Person if: (A) Seller or such Affiliate uses commercially reasonable efforts to divest as soon as reasonably practicable, and actually enters into an agreement to divest within one year from the Closing Date.date of such acquisition or business combination, the portion of such Person or business engaged in Competitive Activities
Appears in 1 contract
Non-Solicitation; Non-Competition. (a) The Seller Parties agree that, for the For a period commencing on the Closing Date of three years from and expiring on the second anniversary of after the Closing Date, they shall Seller will not, and will cause its Affiliates and the Non-DVU Subsidiaries not and shall not direct any of their controlled Affiliates to, directly or indirectly, through their respective officers, directors, employees or otherwise:
(i) request, induce or encourage attempt to influence any University Employee to reject Buyer’s offer of employment, terminate his or her employment with or service to Buyer or any DVU Transferred Entity; or
(ii) solicit for the employment of any management level University Employee. The restrictions of this clause (ii) of this Section 5.14(a) will cease to apply to a University Employee six months after the later of (A) the date of termination of his or her employment with Buyer or any similar arrangement DVU Transferred Entity and (B) the last date on which such University Employee receives severance or other termination payments from Buyer or any DVU Transferred Employee or Entity. Nothing in clause (iiiii) hire or assist any other Person in hiring any Transferred Employee; provided, however, that of this Section 6.10(a5.14(a) shall not prohibit general solicitations will restrict or prevent Seller or any of its Subsidiaries from making generalized searches for employment through employees by the use of advertisements in the media of any form (including trade media) or other means or apply to any Employees by engaging search firms that are not Transferred instructed to solicit the University Employees or, in either case, hiring any University Employee who responds to such generalized searches or Transferred Employees that are terminated by the Buyer after the Closing Datesearch firm solicitations.
(b) The Seller Parties agree that, for the For a period commencing on the Closing Date of three years from and expiring on the third anniversary of after the Closing Date, they shall not Buyer will not, and shall direct any of their controlled Affiliates will cause the DVU Transferred Entities not to, engage, either directly or indirectly, alone through their respective officers, directors, employees or otherwise:
(i) request, induce or attempt to influence any employee of Seller or any Non‑DVU Subsidiary to terminate his or her employment with or service to Seller or any Non‑DVU Subsidiary; or
(ii) solicit the employment of any management-level employee of Seller or any Non-DVU Subsidiary, or any other employee of Seller or any Non-DVU Subsidiary to whom Buyer is introduced, of whom Buyer has become aware, or with otherswhom Buyer has otherwise contacted, as stockholders a result of the preparation, negotiation, execution and performance of this Agreement and the transactions contemplated hereby. The restrictions of clause (ii) of this Section 5.14(b) will cease to apply to an employee of Seller or otherwise any Non-DVU Subsidiary six months after the later of (A) the date of termination of his or her employment with Seller or any Non-DVU Subsidiary and (B) the last date on which such individual receives severance or other termination payments from Seller or any Non-DVU Subsidiary. Nothing in clause (ii) of this Section 5.14(b) will restrict or prevent Buyer or any Competitive Business, including, of the DVU Transferred Entities from making generalized searches for the avoidance of doubt, through employees by the use of advertisements in the media of any knowledge form (including trade media) or by engaging search firms that are not instructed to solicit any employee of Seller or any Non-DVU Subsidiary or, in either case, hiring any such employee who responds to such generalized searches or search firm solicitations.
(c) For a period of three years from and after the Business to promote business with advertisers Closing Date, Seller will not, and agencies will cause its Affiliates and the Non-DVU Subsidiaries not to, directly or indirectly, through competitors of their respective Representatives or otherwise, conduct University Activities in the BusinessTerritory or otherwise engage in, have a controlling equity interest in or take a security interest in, any Person conducting University Activities in the Territory. Notwithstanding the foregoing, the Seller Parties restrictions in this Section 5.14(c) will not preclude Seller, its Affiliates and their Affiliates shall be permitted to acquire any Person, division the Non-DVU Subsidiaries from continuing and/or expanding programs or business that competes with the Business if the good faith, projected revenue operations of such Person, division its other institutions or business that is attributable organizations to the business of the Business for the calendar year in which the sale is consummated is less than (i) $5 million and (ii) ten percent (10%) of the aggregate, good faith, projected revenue of the Person, division or business for the same calendar year, provided that the portion of the acquired Person, division or business that is attributable to the business that competes with the Business shall be terminated or disposed of within six (6) months of extent such acquisitionactivities do not utilize University Intellectual Property.
(c) Buyer agrees that, for the period commencing on the Closing Date and expiring on the second anniversary of the Closing Date, Buyer shall not and shall not direct any of their controlled Affiliates to, (i) solicit for employment or any similar arrangement any employee of a Seller Party or any of its Affiliates who is not a Transferred Employee or (ii) hire or assist any other Person in hiring any such employee; provided, however, that this Section 6.10(d) shall not prohibit general solicitations for employment through advertisements or other means or apply to any such employee who is terminated by a Seller Party or any of its Affiliates after the Closing Date.
Appears in 1 contract
Samples: Stock Purchase Agreement (Adtalem Global Education Inc.)
Non-Solicitation; Non-Competition. (a) The Seller Parties agree thatIn order that Plumas and Plumas Bank may have and enjoy the full benefit of ownership of Feather River and Bank of Feather River and the business each conducts, for including its goodwill, following the period commencing on the Closing Date and expiring on the second anniversary Effective Time of the Closing DateMerger, they Representative agrees that during the Applicable Period, he or she shall not, directly or indirectly, without the prior written consent of Plumas (which shall not and shall not direct be unreasonably withheld or delayed), on behalf of any Financial Institution, solicit or aid in the solicitation of their controlled Affiliates Customers or Prospective Customers for Financial Services or induce or attempt to induce any Person who was a Customer, Prospective Customer, supplier, distributor, officer or employee of Feather River or Bank of Feather River prior to the Effective Time to terminate, reduce or alter such Person’s relationships with, or to take any action that would be disadvantageous to, (i) induce Plumas, Plumas Bank, Feather River or encourage any Employee to reject Buyer’s offer Bank of employment, (ii) solicit for employment or any similar arrangement any Transferred Employee or (iii) hire or assist any other Person Feather River. Nothing contained in hiring any Transferred Employee; provided, however, that this Section 6.10(a) shall not 3 is intended to prohibit general solicitations for employment through advertisements advertising or other means general solicitation not specifically directed at employees, Customers or apply to any Employees that are not Transferred Employees Prospective Customers of Feather River, Bank of Feather River, Plumas, or Transferred Employees that are terminated by the Buyer after the Closing DatePlumas Bank.
(b) The Seller Parties agree thatIn order that Plumas and Plumas Bank may have and enjoy the full benefit of ownership of Feather River and Bank of Feather River and the business each conducts, for including its goodwill, following the period commencing on the Closing Date and expiring on the third anniversary Effective Time of the Closing DateMerger, they Representative further agrees that during the Applicable Period, he or she shall not and shall direct any of their controlled Affiliates not tonot, engage, either directly or indirectly, alone without the prior written consent of Plumas (which shall not be unreasonably withheld or with othersdelayed), own, manage, operate, control, finance or participate in the ownership, management, operation, control or financing of, or be connected as stockholders an officer, director, employee, partner, principal, agent, representative, consultant or otherwise with, any Financial Institution or other business or enterprise engaged in the provision of Financial Services within any Competitive Business, including, for the avoidance of doubt, through the use of any knowledge of the Business California counties in which Feather River or any of its wholly-owned Subsidiaries did business or maintained an office prior to promote business with advertisers and agencies through competitors of the BusinessEffective Time (“Restricted Territory”). Notwithstanding the foregoingabove, the Seller Parties and their Affiliates Representative shall not be permitted deemed to acquire be engaged directly or indirectly in any Person, division or business that competes with the Business if the good faith, projected revenue of such Person, division or business that is attributable to the business in contravention of the Business for the calendar year immediately preceding sentence, if (a) Representative participates in which the sale is consummated is less than any such business solely (i) $5 million and as an officer, director or Employee of Plumas or any of its Subsidiaries or (ii) ten percent (10%) as a passive investor in up to 5% of the aggregate, good faith, projected revenue equity securities or 10% of the Person, division debt securities of a company or business for the same calendar yearpartnership, provided that the portion of the acquired Person, division such securities are publicly traded or (b) Representative is employed by a business or enterprise that is attributable to engaged primarily in a business other than that of a Financial Institution or the business that competes with the Business shall be terminated or disposed provision of within six (6) months of such acquisitionFinancial Services.
(c) Buyer agrees thatAs used in this Agreement, for the period commencing on following terms shall have the Closing Date and expiring on the second anniversary of the Closing Date, Buyer shall not and shall not direct any of their controlled Affiliates to, (i) solicit for employment or any similar arrangement any employee of a Seller Party or any of its Affiliates who is not a Transferred Employee or (ii) hire or assist any other Person in hiring any such employee; provided, however, that this Section 6.10(d) shall not prohibit general solicitations for employment through advertisements or other means or apply to any such employee who is terminated by a Seller Party or any of its Affiliates after the Closing Date.meanings set forth:
Appears in 1 contract
Samples: Merger Agreement (Plumas Bancorp)
Non-Solicitation; Non-Competition. (a) The Seller Parties agree thatEmployee agrees that during and for one year after the period of providing services to the Company, Employee will not directly or indirectly induce, encourage or solicit any employee or consultant of the Company or any affiliate of the Company to terminate their relationship with such entity for any reason, nor will Employee solicit the business of any customer of the Company or any of the Company’s affiliates on whom Employee called or with whom Employee became acquainted during Employee’s employment with the Company.
(b) Employee agrees that during and for the applicable Salary Continuation Period after the period commencing on of providing services to the Closing Date and expiring on Company he will not, directly or indirectly, without the second anniversary prior written consent of the Closing DateCompany (which may be withheld in its sole and absolute discretion) alone or as a partner, they shall not and shall not direct joint venturer, officer, director, employee, consultant, agent, independent contractor, or security holder, of any person or entity, engage in any business activity which is directly or indirectly in competition with the Company’s business at any location within the United States of their controlled Affiliates to, America (i) induce or encourage any Employee to reject Buyer’s offer of employment, (ii) solicit for employment or any similar arrangement any Transferred Employee or (iii) hire or assist any other Person in hiring any Transferred Employeethe “Restricted Territory’”); provided, however, that the beneficial ownership of less than one percent (1%) of any class of securities of any entity having a class of equity securities actively traded on a national securities exchange or the Nasdaq Stock Market will not be deemed, in and of itself, to violate the prohibitions of this Section 6.10(a) shall not prohibit general solicitations for employment through advertisements or other means or apply to any Employees 8(b). Employee agrees that are not Transferred Employees or Transferred Employees that are terminated by the Buyer after nationwide scope of this paragraph is necessary and appropriate given the Closing Date.
(b) The Seller Parties agree that, for the period commencing on the Closing Date and expiring on the third anniversary scope of the Closing DateCompany’s business, they shall not the locations of its customers and shall direct any of their controlled Affiliates not to, engage, either directly or indirectly, alone or with others, as stockholders or otherwise in any Competitive Business, including, for the avoidance of doubt, through the use of any knowledge nature of the Business to promote business with advertisers and agencies through competitors of Company’s industry. The parties intend that the Business. Notwithstanding the foregoing, the Seller Parties and their Affiliates covenants contained in this section shall be permitted to acquire any Personconstrued as a series of separate covenants, division or business that competes with the Business if the good faith, projected revenue of such Person, division or business that is attributable to the business of the Business for the calendar year in which the sale is consummated is less than (i) $5 million one for each country, county, city and state (or comparable political subdivision) in the Restricted Territory, and, within such territorial divisions, and (ii) ten percent (10%) one for each month to which Employee is bound by such covenants. Except for geographic coverage, each such separate covenant shall be deemed identical in terms to the covenants contained in the preceding paragraphs. If, in any judicial proceeding, a court shall refuse to enforce any of the aggregateseparate covenants (or any part thereof) deemed included in such paragraphs, good faith, projected revenue then such unenforceable covenant (or such part) shall be deemed eliminated from this Agreement for the purpose of those proceedings to the extent necessary to permit the remaining separate covenants (or portions thereof) to be enforced by such court. It is the intent of the Person, division or business for the same calendar year, provided parties that the portion of the acquired Person, division or business that is attributable covenants set forth herein be enforced to the business maximum degree permitted by applicable law. In the event that competes with the Business provisions of this Agreement should ever be deemed to exceed the scope, time or geographic limitations of applicable law, then such provisions shall be terminated reformed to the maximum scope, time or disposed of within six (6) months of such acquisitiongeographic limitations, as the case may be, permitted by applicable law.
(c) Buyer agrees that, for the period commencing on the Closing Date and expiring on the second anniversary of the Closing Date, Buyer shall not and shall not direct any of their controlled Affiliates to, (i) solicit for employment or any similar arrangement any employee of a Seller Party or any of its Affiliates who is not a Transferred Employee or (ii) hire or assist any other Person in hiring any such employee; provided, however, that this Section 6.10(d) shall not prohibit general solicitations for employment through advertisements or other means or apply to any such employee who is terminated by a Seller Party or any of its Affiliates after the Closing Date.
Appears in 1 contract
Samples: Employment Agreement (Inverness Medical Innovations Inc)
Non-Solicitation; Non-Competition. (a) The Seller Parties agree thatDuring the Restricted Period, each of the Sellers agrees that neither it nor any of its controlled Affiliates shall, without Apollo’s prior written consent, directly or indirectly (including, without limitation, through the Sellers’ or their respective controlled Affiliates’ representatives), solicit or hire for employment (whether as an employee, consultant or temporary employee) any employee of the period commencing on Subject Companies, except that this paragraph shall not preclude the Closing Date Sellers or any other person from entering into discussions with or soliciting or hiring any person who (i) responds to any public advertisement or general solicitation, (ii) has left the employ of the Subject Companies or their Affiliates three months prior to commencement of discussions with the soliciting party or (iii) has been terminated by the Subject Companies or their Affiliates.
(b) At any time prior to the earlier of (x) the sale and expiring on transfer of StratCap to Apollo and (y) December 31, 2017, Apollo agrees that neither it nor any of its controlled Affiliates shall, without a Seller’s prior written consent, directly or indirectly (including, without limitation, through Apollo’s or its controlled Affiliates’ representatives), solicit or hire for employment (whether as an employee, consultant or temporary employee) any employee of StratCap or its Subsidiaries, except that this paragraph shall not preclude Apollo or any other person from entering into discussions with or soliciting or hiring any person who (i) responds to any public advertisement or general solicitation, (ii) has left the second anniversary employ of StratCap or such Subsidiary or their Affiliates three months prior to commencement of discussions with the soliciting party or (iii) has been terminated by StratCap or such Subsidiary or their Affiliates.
(c) During the Restricted Period, each of the Sellers agrees that neither it nor any of its controlled Affiliates shall, without Apollo’s prior written consent, directly or indirectly (including, without limitation, through the Sellers’ or their respective controlled Affiliates’ representatives), solicit, endeavor to entice away from the Subject Companies or their Affiliates, or otherwise directly or indirectly interfere with the relationship of the Subject Companies or any of their Affiliates, with any Person or entity who is as of the Closing Date, they shall not and shall not direct any of their controlled Affiliates to, (i) induce or encourage any Employee to reject Buyer’s offer of employment, (ii) solicit for employment or any similar arrangement any Transferred Employee or (iii) hire or assist any other Person in hiring any Transferred Employee; provided, however, that this Section 6.10(a) shall not prohibit general solicitations for employment through advertisements or other means or apply to any Employees that are not Transferred Employees or Transferred Employees that are terminated by was within the Buyer after the Closing Date.
(b) The Seller Parties agree that, for the twelve month period commencing on the Closing Date and expiring on the third anniversary of preceding the Closing Date, they shall not and shall direct a customer, client (including other broker dealers) or, to the knowledge of the Sellers, a prospective customer or client (including other broker dealers), of the Subject Companies.
(d) During the Restricted Period, each of the Sellers agrees that neither it nor any of their its controlled Affiliates not toshall, engagewithout Apollo’s prior written consent, either directly or indirectly, alone for itself or on behalf of or in conjunction with othersany Person, whether as stockholders an agent, partner, joint venture, investor or otherwise otherwise, engage in any Competitive Business, including, for Enterprise; provided that the avoidance of doubt, through the use of any knowledge of the Business to promote business with advertisers and agencies through competitors of the Business. Notwithstanding the foregoing, the Seller Parties and their Affiliates restrictions contained in this Section 4.8(c) shall be permitted to acquire any Person, division or business that competes with the Business if the good faith, projected revenue of such Person, division or business that is attributable not apply to the business conducted by Hatteras Funds, LLC and its Subsidiaries of sponsoring and distributing investment companies and private investment funds (other than non-traded REITS and BDCs) and shall not apply to StratCap. The restrictions applicable to the Hatteras Funds, LLC pursuant to this section shall terminate following a bona fide sale, transfer or other disposition of all of the Business for the calendar year in which the sale is consummated is less than (i) $5 million and (ii) ten percent (10%) capital stock of the aggregate, good faith, projected revenue of the Person, division or business for the same calendar year, provided that the portion of the acquired Person, division or business that is attributable applicable entity to the business that competes with the Business shall be terminated or disposed of within six (6) months of such acquisitionan Independent Third Party.
(ce) Buyer agrees that, for the period commencing on the Closing Date and expiring on the second anniversary For purposes of the Closing Date, Buyer shall not and shall not direct any of their controlled Affiliates to, (i) solicit for employment or any similar arrangement any employee of a Seller Party or any of its Affiliates who is not a Transferred Employee or (ii) hire or assist any other Person in hiring any such employee; provided, however, that this Section 6.10(d) shall not prohibit general solicitations for employment through advertisements or other means or apply to any such employee who is terminated by a Seller Party or any of its Affiliates after the Closing Date.Agreement:
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (RCS Capital Corp)
Non-Solicitation; Non-Competition. (a) The Seller Parties agree that, for the For a period commencing on the Closing Date and expiring on the second anniversary of 18 months after the Closing Date, they each Seller shall not not, and shall not direct any of their cause Seller Parent and its controlled Affiliates (other than Sellers) not to, (i) directly or indirectly, hire or employ, or cause, solicit, induce or encourage any Employee Continuing Employees to reject Buyer’s offer of employment, (ii) solicit for leave their employment with Purchaser or any similar arrangement any Transferred Employee or (iii) hire or assist any other Person in hiring any Transferred EmployeeAffiliate thereof; provided, however, that this Section 6.10(a) the foregoing shall not prohibit (i) general solicitations for of employment through advertisements or other means or apply to any Employees that are not Transferred specifically directed toward Continuing Employees or Transferred Employees that are terminated the hiring of such employees in response thereto, (ii) the solicitation, hiring, employment or engagement of any Continuing Employee (other than a Continuing Employee who is identified on Schedule 7.12(a)(iii)) who has not been employed by Purchaser or any Affiliate thereof for a period of three months, or (iii) the Buyer after solicitation, hiring, employment or engagement of any Continuing Employee identified on Schedule 7.12(a)(iii) at any time following the Closing Datetermination of such Continuing Employee by Purchaser or any Affiliate thereof.
(b) The Seller Parties agree that, for the For a period commencing on the Closing Date and expiring on the third anniversary of three years after the Closing Date, they each Seller shall not not, and shall direct any of their cause Seller Parent and its controlled Affiliates (other than Sellers) not to, engage, either directly or indirectly, alone own, manage, operate or with otherscontrol any enterprise, regardless of form, engaged in developing, manufacturing, marketing, selling or distributing, within Europe, substrate roll goods using standard airlaid web forming processes, including spooled and festooned products, that are manufactured by the Business as of the date of this Agreement (the “Seller Restricted 56 Business”); provided that the foregoing restrictions shall not: (i) apply to any business acquired by any Seller, Seller Parent or any controlled Affiliate of Seller Parent other than Sellers, so long as revenue from the sale of products manufactured by any Seller Restricted Business comprising a portion of the acquired business does not comprise more than 20% of such acquired business’ total revenue; provided further nothing herein shall prevent any Seller, Seller Parent or any controlled Affiliate of Seller Parent other than Sellers from acquiring a business in which more than 20% of such acquired business’ total revenue is comprised of revenue from the sale of products manufactured by any Seller Restricted Business, so long as such Seller, Seller Parent or controlled Affiliate of Seller Parent other than Sellers, as stockholders applicable, within one year following the date of such acquisition, divests the portion of such acquired business that constitutes a Seller Restricted Business; or (ii) restrict any Seller, Seller Parent or any controlled Affiliate of Seller Parent other than Sellers from acquiring or owning securities of any Person engaged in a Seller Restricted Business, so long as such securities do not constitute more than 10% of all equity securities of such Person and, except for exercising minority voting rights with respect to such securities, such Seller, Seller Parent or controlled Affiliate of Seller Parent other than Sellers, as applicable, does not otherwise actively manage, operate or control the business activities of such Person.
(c) Each Seller acknowledges and agrees that the remedies at law available for breach of its obligations under this Section 7.12 would be inadequate; therefore, in addition to any other rights or remedies that Purchaser may have at law or in equity, Purchaser shall be entitled to temporary and permanent injunctive relief in any Competitive Businessproceeding that may be brought to enforce any provision contained in this Section 7.12, includingwithout the necessity of proof of actual damage.
(d) Each Seller acknowledges and agrees that the covenants of each Seller contained in this Section 7.12 are being provided as an inducement to Purchaser to enter into this Agreement and such covenants include reasonable limitations with respect to time, geographical area and scope of activity that do not impose a greater restraint on each Seller than is necessary to protect the legitimate business interests of Purchaser.
(e) In the event that any covenant contained in this Section 7.12 is determined by any court of competent jurisdiction to be unenforceable for any reason whatsoever, then such covenant will not be deemed void, and the Parties agree that (i) the limitations with respect to time, geographical area and scope of activity included in such covenant, as applicable, may be modified by such court to instead reflect the maximum limitations with respect thereto that are enforceable and (ii) solely for purposes of the operation of such covenant in the context of the controversy in which such determination is made, such covenant will be deemed amended in accordance with such modification. For the avoidance of doubt, through the use Parties specifically acknowledge and agree that (A) it is their continuing desire for each covenant contained in this Section 7.12 to be enforced to the full extent of its terms, but (B) if a court of competent jurisdiction finds the limitations included in any knowledge of the Business to promote business with advertisers and agencies through competitors of the Business. Notwithstanding the foregoingsuch covenant unenforceable, the Seller Parties and their Affiliates shall be permitted court should redefine the limitations included in such covenant so as to acquire any Person, division or business that competes comply with the Business if the good faith, projected revenue of such Person, division or business that is attributable to the business of the Business for the calendar year in which the sale is consummated is less than (i) $5 million and (ii) ten percent (10%) of the aggregate, good faith, projected revenue of the Person, division or business for the same calendar year, provided that the portion of the acquired Person, division or business that is attributable to the business that competes with the Business shall be terminated or disposed of within six (6) months of such acquisitionapplicable Law.
(cf) Buyer agrees thatIf a Seller has violated Section 7.12(a) or Section 7.12(b), for then the time period set forth in such Section shall automatically be extended by a period of time equal in length to the period commencing on the Closing Date and expiring on the second anniversary of the Closing Date, Buyer shall not and shall not direct any of their controlled Affiliates to, (i) solicit for employment during which such violation or any similar arrangement any employee of a Seller Party or any of its Affiliates who is not a Transferred Employee or (ii) hire or assist any other Person in hiring any such employee; provided, however, that this Section 6.10(d) shall not prohibit general solicitations for employment through advertisements or other means or apply to any such employee who is terminated by a Seller Party or any of its Affiliates after the Closing Date.violations occurred. 57
Appears in 1 contract
Non-Solicitation; Non-Competition. (a) The For a period of fifteen (15) months from and after the Closing Date, without the prior written consent of Purchasers, Seller Parties agree thatand the Selling Subsidiaries shall not, and shall cause their respective Affiliates not to, directly or indirectly, on their own behalf or on behalf of any other Person hire, employ, make an offer to hire or otherwise solicit, induce or encourage any Purchaser Employee to leave his or her employment with Purchasers, the Conveyed Entities or any of their respective Affiliates; provided, however, nothing in this Section 5.15(a) shall prohibit Seller, the Selling Subsidiaries or any of their Affiliates from hiring any Purchaser Employee (A) whose employment with Purchasers, the Conveyed Entities or any of their respective Affiliates was terminated involuntarily; (B) with an annual base salary of less than $100,000 or whose employment with Purchasers, the Conveyed Entities or any of their Affiliates is within the State of California; (C) who responds to any public advertisements or any other form of general solicitation for employment that is not targeted specifically at any Purchaser Employee; or (D) who initially and entirely independently contacts Seller, any Selling Subsidiary or any of their Affiliates on his or her own initiative, without solicitation or encouragement (directly or indirectly) by Seller, any Selling Subsidiary or any of their Affiliates.
(b) For the period commencing on the Closing Date and expiring on the second fifth (5th) anniversary thereof, none of the Closing DateSeller, they shall not and shall not direct any Selling Subsidiary or any of their controlled respective Affiliates to(collectively, (i) induce or encourage any Employee to reject Buyer’s offer of employmentthe “Restricted Parties”), (ii) solicit for employment or any similar arrangement any Transferred Employee or (iii) hire or assist any other Person in hiring any Transferred Employee; provided, however, that this Section 6.10(a) shall not prohibit general solicitations for employment through advertisements or other means or apply to any Employees that are not Transferred Employees or Transferred Employees that are terminated by the Buyer after the Closing Date.
(b) The Seller Parties agree that, for the period commencing on the Closing Date and expiring on the third anniversary of the Closing Date, they shall not and shall direct any of their controlled Affiliates not to, engage, either directly or indirectly, alone shall engage in fabrication or with othersinstallation of rebar and related materials (collectively, as stockholders or otherwise “Restricted Activities”) anywhere in any Competitive Business, includingthe United States (which, for the avoidance of doubt, through shall not include Puerto Rico), nor shall any Restricted Party, directly or indirectly, be employed by, invest in, have any ownership interest in, participate in, act as a consultant or lender to, lease to, provide services to (as an employee, director, officer, member, principal, licensor, trustee, broker, agent, stockholder, partner, or in any other capacity), have any joint venture with or joint bid with, operate, assist, represent, advise or otherwise provide support to, any Person that engages in or that the use of Restricted Parties know plans to engage in any knowledge of Restricted Activity in the Business to promote business with advertisers and agencies through competitors of the Business. Notwithstanding the foregoingUnited States (which, the Seller Parties and their Affiliates shall be permitted to acquire any Person, division or business that competes with the Business if the good faith, projected revenue of such Person, division or business that is attributable to the business of the Business for the calendar year in which the sale is consummated is less than (i) $5 million and (ii) ten percent (10%) avoidance of the aggregatedoubt, good faith, projected revenue of the Person, division or business for the same calendar year, provided that the portion of the acquired Person, division or business that is attributable to the business that competes with the Business shall be terminated or disposed of within six (6) months of such acquisitionnot include Puerto Rico).
(c) Buyer agrees thatNotwithstanding the foregoing or anything else contained in this Agreement to the contrary, for the period commencing on the Closing Date and expiring on the second anniversary of the Closing Date, Buyer restrictions in Section 5.15(b) shall not and shall not direct any of their controlled Affiliates to, apply to the following:
(i) solicit The current fabrication shops at the locations set forth on Schedule 5.15(c) of the Seller Disclosure Letter, that, as of the date of this Agreement, are currently being marketed for employment or any similar arrangement any employee of sale by a Seller Party or any of its Affiliates who is not a Transferred Employee or Restricted Party;
(ii) hire A Restricted Party may own, directly or assist indirectly, solely as a passive investment, securities of any other Person traded on any national securities exchange; provided that (a) no Restricted Party controls, or is a member of a group which controls, such Person and (b) the Restricted Parties, do not, directly or indirectly, own, in hiring the aggregate, two percent (2%) or more of any class of securities of such employeePerson;
(iii) A Restricted Party may own, directly or indirectly, solely as a passive investment, a fabrication shop or securities of any Person owning or operating a fabrication shop; providedprovided that (a) no Restricted Party controls, howeveror is a member of a group which controls, that this Section 6.10(dsuch Person and (b) shall not prohibit general solicitations for employment through advertisements the Restricted Parties, do not, directly or other means indirectly, own, in the aggregate, more than five percent (5%) of such fabrication shop or apply 5% of any class of securities of such Person;
(iv) The sale of rebar to independent, third-party fabrication facilities by any Restricted Party from steel mini-xxxxx, so long as such employee who is terminated by a Seller Party or any sales are in the ordinary course of its Affiliates after business consistent with past practice; and
(v) Any activities required to perform the Closing Dateservices under the Transition Services Agreement.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Commercial Metals Co)
Non-Solicitation; Non-Competition. (a) The Seller Parties agree that, Commencing on and for the a period commencing on the Closing Date and expiring on the second anniversary of three (3) years following the Closing Date, they Seller shall not not, and shall cause the Retained Subsidiaries not direct any of their controlled Affiliates to, directly or indirectly, engage in any business that competes with the Business anywhere in the world (i) induce or encourage any Employee to reject Buyer’s offer of employment, (ii) solicit for employment or any similar arrangement any Transferred Employee or (iii) hire or assist any other Person in hiring any Transferred Employee; provided, however, that this Section 6.10(a) shall not prohibit general solicitations for employment through advertisements or other means or apply to any Employees that are not Transferred Employees or Transferred Employees that are terminated by the Buyer after the Closing Date“Restricted Activities”).
(b) The Seller Parties agree that, for the period commencing on the Closing Date and expiring on the third anniversary of the Closing Date, they that nothing herein shall not and shall direct any of their controlled Affiliates not to, engage, either directly prohibit Seller or indirectly, alone its Subsidiaries from:
(i) acquiring or with others, as stockholders or otherwise investing in any Competitive Business, including, for the avoidance of doubt, through the use of any knowledge of the Business to promote business with advertisers and agencies through competitors of the Business. Notwithstanding the foregoing, the Seller Parties and their Affiliates shall be permitted to acquire any Person, division or business that competes with the Business assets thereof, if the good faith, projected revenue of such Person, division or business that is attributable to the business of the Business for the calendar year in which the sale is consummated is less than (i) $5 million and (ii) ten percent (10%) of the aggregategross revenues, good faithassets and income of such Person or assets (based on such Person’s latest annual audited consolidated financial statements) are related to or were derived from Restricted Activities;
(ii) acquiring or investing in any Person, projected revenue or the assets thereof, if ten percent (10%) or more than ten percent (10%) of the gross revenues, assets and income of such Person or assets (based on such Person’s latest annual audited consolidated financial statements) are related to or were derived from Restricted Activities; provided, division that within one year of such acquisition, such Party or business for its Subsidiaries enter into a definitive agreement to divest itself of all or substantially all of the same calendar yearassets or operations so acquired that are engaged in Restricted Activities, as applicable (and use reasonable best 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 the outstanding voting power of any Person; provided that Seller or its Subsidiaries has no representative on the board of directors or similar governing body;
(iv) acquiring or investing in any equity interest in any Person through any employee benefit plan of such Party or its Subsidiaries; or
(v) engaging in all or any portion of the acquired PersonESAB and DJO businesses of Seller and its Subsidiaries as presently conducted.
(c) Commencing on and for a period of two (2) years following the Closing Date, division Seller shall not, and shall cause the Retained Subsidiaries not to, directly or business indirectly, solicit for employment (whether as an employee, consultant or otherwise), offer to hire or engage, hire, employ, engage or enter into any employment or consulting agreement or arrangement with any Transferred Employee or other Business Employee; provided, that is attributable this prohibition shall not apply to (i) solicitation of any such individual who has been terminated by Purchaser or its Affiliates, (ii) solicitations made to the business that competes public or the industry generally through advertising or electronic listing which are not targeted at employees of Purchaser or any of its Subsidiaries or (iii) hiring any person who either (A) except for any such employee with annual compensation greater than or equal to $150,000, responds to a solicitation permitted under clause (i) or (ii) above or (B) who was not employed by any of the Business shall be terminated Acquired Group Companies or disposed of within Purchaser or its Affiliates for six (6) months of prior to such acquisitionhiring.
(cd) Buyer agrees The Parties agree that, for notwithstanding anything to the period commencing on contrary herein, the provisions of 5.13(a) and 5.13(c) shall not prohibit (i) Seller or any of the Retained Subsidiaries from performing under any Contract or owning or operating any other asset that constitutes a Transferred Asset which is not transferred, conveyed or assigned to Purchaser or one of its Subsidiaries as of the Closing Date and expiring on the second anniversary or (ii) Seller or any of the Closing DateRetained Subsidiaries from performing its obligations under this Agreement or the Ancillary Agreements.
(e) Notwithstanding anything to the contrary set forth herein (including Section 12.13), Buyer shall not and shall not direct in the event of a breach of any of their controlled Affiliates to, the provisions of Section 5.13(a) through (d) (the “Restrictive Covenants”):
(i) solicit for employment Purchaser and its Affiliates (including the Acquired Group Companies) shall, without limitation of any other available remedy, be entitled to (A) have the Restrictive Covenants specifically enforced by any court of competent jurisdiction and (B) have issued an injunction restraining any such breach (or any similar arrangement any employee threatened breach) without posting of a Seller Party or bond; it being understood that any breach of any of the Restrictive Covenants would cause irreparable and material damage to Purchaser and its Affiliates (including the Acquired Group Companies), the amount of which cannot be readily determined and as to which neither Purchaser nor any of its Affiliates who is not a Transferred Employee (including the Acquired Group Companies) will have any adequate remedy at law or in damages;
(ii) hire it is the desire and intent of the Parties that the Restrictive Covenants be enforced to the fullest extent permissible under the Laws, Orders and public policies applied in each jurisdiction in which enforcement is sought and if any Restrictive Covenant shall be adjudicated finally to be invalid or assist any other Person unenforceable, such Restrictive Covenant shall be deemed amended to the extent (and only to such extent) necessary in hiring any order that such employee; providedprovision be valid and enforceable, however, that this Section 6.10(d) the remainder of such Restrictive Covenant shall not prohibit general solicitations thereby be affected and shall be given full force and effect without regard to invalid portions and such amendment shall apply only with respect to the operation of the Restrictive Covenant in the particular jurisdiction in which such adjudication is made; and
(iii) the Parties acknowledge and agree that the Restrictive Covenants are necessary for employment through advertisements or the protection and preservation of the value and the goodwill of the Business and each of Purchaser’s and each Acquired Group Companies’ businesses and are reasonable and valid in geographical and temporal scope and in all other means or apply to any such employee who is terminated by a Seller Party or any of its Affiliates after the Closing Daterespects.
Appears in 1 contract
Non-Solicitation; Non-Competition. (a) The Seller Parties agree thatWithout MLCC’s prior written consent, which may be withheld by MLCC in its sole discretion, neither Cendant nor any of its affiliated entities shall solicit any Mortgagor, or cause any Mortgagor to be solicited, for the period commencing on the Closing Date and expiring on the second anniversary financing of the Closing Dateany Mortgage Loan or any product or service whatsoever that is offered by Xxxxxxx Lynch, they shall not and shall not direct Pierce, Xxxxxx & Xxxxx Incorporated or any of their controlled Affiliates toits affiliated entities including, (i) induce without limitation, any investment or encourage any Employee financial services or products, insurance products or services and brokerage account services. MLCC will cause each Correspondent Lender to reject Buyer’s offer of employment, (ii) solicit for employment or any similar arrangement any Transferred Employee or (iii) hire or assist any other Person in hiring any Transferred Employee; provided, however, that this Section 6.10(a) shall not prohibit general solicitations for employment through advertisements or other means or apply to any Employees that are not Transferred Employees or Transferred Employees that are terminated be bound by the Buyer after the Closing DateProvisions Against Solicitation.
(b) The Seller Parties agree thatWithout Cendant’s prior written consent, for which may be withheld by Cendant in its sole discretion, until after the period commencing on the Closing Date and expiring on the third anniversary expiration or earlier termination of this Amendment No. 1, neither MLCC nor any of its affiliated entities shall enter into Wholesale Lender relationships with any of the Closing Date, they shall not and shall direct any of their controlled Affiliates not to, engage, either directly or indirectly, alone or with others, as stockholders or otherwise in any Competitive Business, including, for the avoidance of doubt, through the use of any knowledge of the Business to promote business with advertisers and agencies through competitors of the Business. Notwithstanding the foregoing, the Seller Parties and their Affiliates shall be permitted to acquire any Person, division or business that competes with the Business if the good faith, projected revenue of such Person, division or business that is attributable to the business of the Business for the calendar year in which the sale is consummated is less than following: (i) $5 million and )[* * *], (ii) ten percent (10%) [* * *]with the sole exception of the aggregateWholesale Lenders identified in Exhibit C attached hereto, good faith, projected revenue and (iii) any of the PersonWholesale Lenders identified in Exhibit B attached hereto (the “Restricted Correspondent Lenders”). The foregoing notwithstanding, division or business for however, it is agreed that MLCC may enter into Wholesale Lender relationships with the same calendar year, Restricted Correspondent Lenders provided that the portion of the acquired Person, division or business only Mortgage Loan products that is attributable to the business that competes with the Business shall be terminated or disposed of within six (6) months of such acquisition.
(c) Buyer agrees that, for the period commencing on the Closing Date and expiring on the second anniversary of the Closing Date, Buyer shall not and shall not direct any of their controlled Affiliates made available to, (i) solicit for employment or any similar arrangement any employee of a Seller Party or any of its Affiliates who is purchased from, such Restricted Correspondent Lenders shall be Mortgage Loans that are not a Transferred Employee or (ii) hire or assist any other Person in hiring any currently available to such employee; provided, however, that this Section 6.10(d) shall not prohibit general solicitations for employment Restricted Correspondent Lenders through advertisements or other means or apply to any such employee who is terminated by a Seller Party or any of its Affiliates after the Closing DateCendant.
Appears in 1 contract
Samples: Origination Assistance Agreement
Non-Solicitation; Non-Competition. (a) The Seller Parties agree that, for the For a period commencing on the Closing Date and expiring on the second anniversary of three (3) years from the Closing Date, they shall not and shall not direct any without the prior written consent of their controlled Affiliates to, (i) Purchaser, Seller agrees that neither it nor any of its Subsidiaries shall hire, employ, engage or offer employment to, or solicit for employment any Transferred Business Employee with the title of Associate Director or higher or seek to induce or encourage any influence such Transferred Business Employee to reject Buyer’s offer leave employment with Purchaser or any of employment, its Subsidiaries and (ii) the other Party, each Party agrees that neither it nor any of its Subsidiaries shall hire, employ, engage or offer employment to, or solicit for employment any employee of the other Party or seek to induce or influence such employee to leave employment with the other Party or any similar arrangement of its Subsidiaries with whom the Party had material contact by virtue of the Transactions or the transactions contemplated by the other Transaction Documents; provided that, each Party and its Subsidiaries shall not be precluded from soliciting, or taking any Transferred Employee other of the foregoing actions with respect to any such individual (A) whose employment has been terminated for a period of six (6) months prior to commencement of solicitation by such Party or its Subsidiaries or employment discussions between such Party or its Subsidiaries and such individual, (B) who responds to a general solicitation not specifically targeted by such Party at employees of the other Party or any of its Subsidiaries (including by a search firm or recruiting agency), (C) who initiates discussions regarding such employment without any solicitation by such Party or its Subsidiaries in violation of this Agreement or (iiiD) hire who is specified on Section 5.14(a) of the Seller Disclosure Schedules (provided that such individual’s employment must have been terminated after the expiration and completion of his or assist any other Person in hiring any Transferred Employeeher applicable transition service under the Transition Services Agreement); provided, howeverfurther, that this Section 6.10(a) each Party and its Affiliates shall not prohibit general be restricted from engaging in solicitations for employment through advertisements or advertising not targeted at any employee of the other means Party or apply to any Employees that are not Transferred Employees or Transferred Employees that are terminated by Affiliate of the Buyer after the Closing Dateother Party.
(b) The Seller Parties agree thatFor a period of three (3) years from the Closing Date, for (i) without the period commencing on prior written consent of Xxxxxxxxx, Xxxxxx agrees that neither it nor any of its Subsidiaries shall:
(i) engage or be involved in a business in any jurisdiction in which the GES Business operates as of immediately prior to the Closing, to the extent such business competes with the GES Business, as conducted as of the Closing Date and expiring on (each, a “Competitive Activity”);
(ii) acquire beneficial ownership or voting control of the third anniversary outstanding equity interests (including any debt securities exercisable or exchangeable for, or convertible into, equity interests) of or provide any loan or other financial assistance (other than to its customers, channel partners or vendors in the ordinary course of business) to, any Person that is engaged in a Competitive Activity;
(iii) solicit or attempt to solicit any Person that was a customer of the GES Business as of the Closing Date or, in either case, during the twelve (12)-month period prior to the Closing Date, for purposes of providing any product or service that is competitive with those provided by the GES Business as of the Closing Date; or
(iv) knowingly and intentionally induce or attempt to induce any customer described in clause (iii) above or any Person that was an SDO, they channel partner, supplier, vendor, licensor, licensee, lessor or lessee, or other business relation of the GES Business as of the Closing Date or during the twelve (12)-month period prior to the Closing Date, to cease doing business with, or adversely modify its business relationship with, the GES Business; provided that the foregoing clauses (i) through (iv) shall not and shall direct prohibit Seller or any of their controlled Affiliates not toits Subsidiaries from (A) collectively, engage, either directly or indirectly, alone or with others, as stockholders or otherwise owning up to an aggregate of five percent (5%) of the 80 outstanding shares of any class of capital stock of any Person engaging in any Competitive Business, including, for Activity so long as no Seller Entity has any participation in the avoidance of doubt, through the use of any knowledge of the Business to promote business with advertisers and agencies through competitors of the Business. Notwithstanding the foregoing, the Seller Parties and their Affiliates shall be permitted to acquire any Person, division or business that competes with the Business if the good faith, projected revenue management of such Person, division (B) performing any service or action under the Transition Services Agreement, (C) engaging in any manner in any business activity that would otherwise violate this Section 5.14, that is attributable to (x) acquired from any Person (an “Acquired Business”) or (y) carried on by any Person that is acquired by or combined with Seller or an Affiliate of Seller, in each case after the business of the Business for the calendar year in which the sale is consummated is less than Closing Date (ian “Acquired Company”) $5 million and (ii) ten percent (10%) of the aggregateprovided, good faith, projected that that revenue of the Person, division or business for the same calendar year, provided that generated by the portion of the acquired Person, division Acquired Business or business Acquired Company that is attributable engaged in the activity in violation of this Section 5.14 shall be no greater than twenty percent (20%) of such Acquired Business’s or Acquired Company’s, as applicable, overall revenue in the last twelve (12) months immediately prior to the date of entry into definitive agreements with respect to such acquisition) so long as, in the case of this clause (C), Seller or its Subsidiaries, as applicable, divests or otherwise terminates or disposes of the business activity, product lines or assets of such Acquired Business or Acquired Company that competes with the Business shall be terminated or disposed of would otherwise violate this Section 5.14 within six twelve (612) months of the consummation of the acquisition of such acquisitionAcquired Business or Acquired Company (the “Divestiture Period”); provided that if such divestiture, termination or disposition has not been consummated due to (x) any applicable waiting period (including extension thereof) applicable to such divestiture, termination or disposition under the HSR Act or under any other applicable Law not having expired or been terminated or (y) the failure to procure or obtain any required governmental or regulatory consents, approvals, Permits or authorizations of any Governmental Entity applicable to such divestiture, termination or disposition, then the Divestiture Period will automatically be extended so that it expires one (1) week following the later of the expiration or termination of such waiting period or the procurement or obtainment of such consents, approvals, Permits and authorizations; provided, further, that in no event shall the Divestiture Period extend beyond eighteen (18) months of the consummation of the acquisition of such Acquired Business or Acquired Company or (D) engaging in any existing business currently owned or operated by the Seller or any of its Affiliates (other than the GES Business) and any reasonably foreseeable extensions thereof.
(c) Buyer agrees thatThe Parties agree that the restrictions and limitations set forth in this Section 5.14 are reasonable, for valid in geographical and temporal scope and in all other respects, enforceable, and essential to protect the period commencing on the Closing Date and expiring on the second anniversary value of the Closing DateGES Business and the Purchased Assets. If a court or tribunal of competent jurisdiction determines that any term or provision contained in this Section 5.14 is invalid or unenforceable, Buyer shall not the Parties agree that the court or tribunal will have the power to reduce the scope, duration or geographic 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 shall not direct any enforceable and that comes closest to expressing the intention of their controlled Affiliates to, (i) solicit for employment the invalid or any similar arrangement any employee of a Seller Party unenforceable term or any of its Affiliates who is not a Transferred Employee or (ii) hire or assist any other Person in hiring provision; provided that any such employee; providedreduction, however, that this Section 6.10(d) deletion or replacement shall not prohibit general solicitations for employment through advertisements only be to the extent necessary to render such term or other means or apply to any such employee who is terminated by a Seller Party or any of its Affiliates after the Closing Dateprovision valid and enforceable.
Appears in 1 contract
Samples: Securities and Asset Purchase Agreement (S&P Global Inc.)
Non-Solicitation; Non-Competition. (a) The Seller Parties agree that, for the period commencing on From and after (and subject to) the Closing Date and expiring on the second anniversary for a period of twenty-four (24) months thereafter, Seller Parent and Sellers shall not, and shall cause their respective Affiliates not to, solicit or attempt to solicit for employment, hire or attempt to hire, any person who is a director, manager, officer or employee of the Closing Date, they shall not and shall not direct any Company Entities or of their controlled Affiliates to, (i) induce or encourage any Employee to reject Buyer’s offer of employment, (ii) solicit for employment or any similar arrangement any Transferred Employee or (iii) hire or assist any other Person in hiring any Transferred Employeethe DE Business; provided, however, that this Section 6.10(a) the foregoing shall not prohibit prevent Seller Parent, Sellers or their Affiliates from making any general solicitations for solicitation of employment through advertisements in a trade journal or newspaper or other means publication or apply to internet job posting site not specifically targeted at any Employees such director, manager, officer or employee of the Company Entities or of the DE Business; provided, that are not Transferred Employees or Transferred Employees that are terminated by the Buyer after the Closing Dateno hiring occurs as a result thereof.
(b) The Seller Parties agree that, for the period commencing on From and after (and subject to) the Closing Date and expiring on the third anniversary for a period of the Closing Datefive (5) years thereafter, they Seller Parent and Sellers shall not not, and shall direct any of cause their controlled respective Affiliates not to, engageown, either operate, manage, advise or control, directly or indirectly, alone on their own behalf or with others, as stockholders or otherwise in any Competitive Business, including, for the avoidance of doubt, through the use on behalf of any knowledge of the Business to promote business with advertisers and agencies through competitors of the Business. Notwithstanding the foregoing, the Seller Parties and their Affiliates shall be permitted to acquire any Person, division or business that competes with the Business if the good faith, projected revenue of such Person, division or business that is attributable to the business of the Business for the calendar year in which the sale is consummated is less other Person (other than (i) $5 million and (ii) ten percent (10%) of the aggregate, good faith, projected revenue of the Person, division or business for the same calendar year, provided that the portion of the acquired Person, division or business that is attributable to the business that competes with the Business shall be terminated or disposed of within six (6) months of such acquisition.
(c) Buyer agrees that, for the period commencing on the Closing Date and expiring on the second anniversary of the Closing Date, Buyer shall not and shall not direct any of their controlled Affiliates to, (i) solicit for employment or any similar arrangement any employee of a Seller Party or any of its Affiliates who is not a Transferred Employee or (iiAffiliates) hire or assist anywhere in the world, any other Person in hiring any such employeeCompetitive Business; provided, however, that this Section 6.10(d) the foregoing shall not prohibit general solicitations for employment prevent Seller Parent, Sellers or their Subsidiaries from (i) acquiring and holding up to a two percent (2%) passive investment in any Competitive Business (provided that none of Seller Parent, Sellers or their Subsidiaries has any right to manage or otherwise direct (or participate in the management or direction of) the operations of such Competitive Business, including through advertisements the appointment of any representative to the board of directors or other means similar governing body of such Competitive Business), (ii) acquiring, directly or apply to any such employee who is terminated by a Seller Party or indirectly through any of its Affiliates Affiliates, and thereafter owning, operating, managing, advising or controlling, any entity that engages in any Competitive Business as long as (x) such Competitive Business accounts for less than fifteen percent (15%) of such entity’s consolidated revenues for its most recently completed fiscal year prior to such acquisition and (y) Seller Parent, Sellers or their Affiliates, as applicable, divest such Competitive Business within eighteen (18) months after the Closing Dateacquisition of such entity, and (iii) continuing to engage in activities contemplated under or in connection with the Chemtrade Arrangements.
(c) The Parties agree that for applicable Tax purposes no portion of the Purchase Price shall be allocated to the covenants and agreements contained in this Section 6.15 (it being understood that this sentence shall not be construed as a limitation on Damages arising out of any breach of this Section 6.15).
Appears in 1 contract
Non-Solicitation; Non-Competition. (a) The Each Seller Parties agree thatagrees that for the period commencing on the Closing Date and expiring 18 months after the Closing Date neither it nor any of its respective Affiliates will, directly or indirectly, solicit for employment or any similar arrangement or hire any Transferred Business Employee; provided, however, that this Section 6.7(a) shall not apply to any Transferred Business Employee who has left the employment of Purchaser or any of its Affiliates for at least six months preceding the date of contract between such Seller or its Affiliates and such individual and shall not prohibit general solicitations for employment through advertisements or other means not targeted at Transferred Business Employees (and the hiring of any persons identified by such general solicitations).
(b) Each Seller agrees that for the period commencing on the Closing Date and expiring two years after the Closing Date neither it nor any of its respective Affiliates (the “Restricted Entities”) shall engage, either directly or indirectly, alone or with others, in or own, manage or operate any business in the United States that is engaged in business engaged in by the CRS Business as of the date hereof (such business, the “Competing Business”); provided that nothing in this Section 6.7(b) shall preclude Sellers or any of their Affiliates from (i) continuing to own, service, administer and maintain any Restricted Item, (ii) owning up to 10% of the voting equity of any Person engaged in a Competing Business (provided such investment is a passive, non-controlling investment), (iii) operating the Retained Business, (iv) issuing any Non-Credit Card Products and owning, servicing, administering and maintaining accounts and receivables related to any Non-Credit Card Products, (v) making acquisitions or maintaining ownership of any entity in connection with a bona fide financial investment by a venture capital, private equity, merchant banking or similar line of business of any such Restricted Entity provided that the primary purpose of such investment is not evading the restrictions set forth in this Section 6.7(b) or anything done on behalf of clients or third party fiduciaries, (vi) financing, lending or making extensions of credit to, or foreclosing on the collateral of, or acquiring any non-convertible debt securities of, any Competing Business in the ordinary course of business, (vii) acquiring any equity securities of any Person that has outstanding indebtedness to Sellers or any of their Affiliates, or engaging in any activities otherwise prohibited by this Section 6.7(b) in connection with any such person as a result of the acquisition of such equity securities, in satisfaction of a debt previously contracted in a distressed or troubled situation; provided that in each case of clause (vi) and (vii) they shall divest, sell dispose of or otherwise transfer, as soon as reasonably practicable following the purchase or acquisition of any such Competing Business or any such equity securities (viii) merging, consolidating or otherwise engaging in a business combination with, or selling all or substantially all of its assets or businesses to, any Person that is not an Affiliate of any such Restricted Entity with an existing Competing Business and continuing to operate such existing Competing Business (provided that (A) members of such Selling Entity’s board of directors (or comparable governing body) do not constitute a majority of the board of directors of the surviving corporation of such transaction (or of the board of directors of its publicly traded parent company) and (B) that the shareholders of such Selling Entity immediately prior to consummation of such transaction do not immediately after consummation of such transaction own 60% or more of the outstanding capital stock or other equity interests of the surviving entity of such transaction (or of its publicly traded parent company) or (ix) purchasing or acquiring (through merger, stock purchase or purchase of all or substantially all of the assets or otherwise) any Person engaged in a Competing Business and continuing to operate such existing Competing Business (provided that (A) such existing Competing Business shall not represent more than 30% of the consolidated annual revenues of the business or entity acquired or (B) if such existing Competing Business represents more than 30% but less than 60% of the consolidated annual revenues of the business or entity acquired, Sellers or their respective Affiliates, as applicable, divest, sell dispose of or otherwise transfer, as soon as reasonably practicable following the purchase or acquisition thereof, sufficient assets or business of such Competing Business to reduce the consolidated annual revenues that the Competing Business represents of the business or entity acquired to 30% or less).
(c) Each Seller agrees that for the period commencing on the Closing Date and expiring on the second later of (i) the date that is two years following the Closing Date and (ii) the one year anniversary of the Closing Date, they shall not and shall not direct any expiration of their controlled Affiliates to, the current term of the applicable Specified Partner Agreement (i) induce or encourage any Employee to reject Buyer’s offer of employment, (ii) solicit for employment or any similar arrangement any Transferred Employee or (iii) hire or assist any other Person in hiring any Transferred Employee; provided, however, that this Section 6.10(a) shall not prohibit general solicitations for employment through advertisements or other means or apply without giving effect to any Employees that are not Transferred Employees extensions, renewals or Transferred Employees that are terminated by the Buyer modifications after the Closing Date.
(b) The date hereof), none of the Restricted Entities shall directly or indirectly solicit or enter into any agreement with any counterparty to a Specified Partner Agreement in respect of any services or products of the type covered by such Specified Partner Agreement. Each Seller Parties agree that, agrees that for the period commencing on the Closing Date and expiring on the third two year anniversary of the Closing Date, they none of the Restricted Entities shall not and shall direct any of their controlled Affiliates not to, engage, either directly or indirectly, alone indirectly solicit or enter into any agreement with others, as stockholders or otherwise any counterparty to an Assigned Partner Agreement (other than a Specified Partner Agreement) in any Competitive Business, including, for the avoidance of doubt, through the use respect of any knowledge services or products of the Business to promote business with advertisers and agencies through competitors of the Business. Notwithstanding the foregoing, the Seller Parties and their Affiliates shall be permitted to acquire any Person, division or business that competes with the Business if the good faith, projected revenue of type covered by such Person, division or business that is attributable to the business of the Business for the calendar year in which the sale is consummated is less than (i) $5 million and (ii) ten percent (10%) of the aggregate, good faith, projected revenue of the Person, division or business for the same calendar year, provided that the portion of the acquired Person, division or business that is attributable to the business that competes with the Business shall be terminated or disposed of within six (6) months of such acquisitionAssigned Partner Agreement.
(cd) Buyer Purchaser agrees that, that for the period commencing on the Closing Date and expiring on the second anniversary of 18 months after the Closing Date, Buyer shall not and shall not direct or in the case of the facility in Alabang, Philippines, 3 years after the Closing Date, neither it nor any of their controlled its respective Affiliates towill, (i) directly or indirectly, solicit for employment or any similar arrangement or hire any employee of any Selling Entity at a Seller Party work location that is or any was shared after the Closing Date with Transferred Business Employees or other employees of the Purchaser and its Affiliates who is not a Transferred Employee or (ii) hire or assist any other Person in hiring any such employee; Affiliates, provided, however, that this Section 6.10(d6.7(d) shall not (i) apply to any employee who has ceased to be employed by any Selling Entity for a period of at least six months prior to commencement of employment discussions between Purchaser and such persons or (ii) prohibit general solicitations for employment through advertisements or other means or apply to not targeted at such employees (and the hiring of any persons identified by such employee who is terminated by a general solicitations).
(e) Each Seller Party or any of its Affiliates agrees that for the period commencing on the Closing Date and expiring 18 months after the Closing Date, neither it nor any of its respective Affiliates will, directly or indirectly, solicit for employment or any similar arrangement or hire any employee of Purchaser sharing a work location that is or was shared after the Closing with employees of a Selling Entity, provided, however, that this Section 6.7(e) shall not (i) apply to any employee who has ceased to be employed by Purchaser for a period of at least six months prior to commencement of employment discussions between Seller and such persons or (ii) prohibit general solicitations for employment through advertisements or other means not targeted at such employees (and the hiring of any persons identified by such general solicitations).
(f) Until the earlier of the Closing and the date that is 18 months after the termination date (in the event that this Agreement is terminated for any reason pursuant to Article IX), Purchaser and its Affiliates shall not, directly or indirectly, hire or solicit any Business Employee or other employee of any Selling Entity sharing a work location with a Business Employee that Purchaser or its Affiliates come into contact in connection with the transactions contemplated by this Agreement, any Ancillary Agreement or the Agent Bank Agreement, regarding the employment of such person or the provision of other services by such person (except as contemplated by this Agreement); provided, however, that this Section 6.7(f) shall not (i) apply to any Business Employee or other employee who has ceased to be employed by any Selling Entity for a period of at least six months prior to commencement of employment discussions between Purchaser and such person, (ii) prohibit general solicitations for employment through advertisements or other means not targeted at such individuals (and the hiring of any persons identified by such general solicitations) or (iii) prohibit the hiring of any Business Employee or other employee who (A) has applied for employment with Purchaser or its Affiliates prior to the date hereof and (B) was not solicited by Purchaser or its Affiliates in violation of the Confidentiality Agreement.
(g) Purchaser and Sellers understand and acknowledge that (i) it would be difficult to calculate damages from any breach of the obligations under this Section 6.7, (ii) injury from any such breach would be irreparable and impossible to measure and (iii) the remedy at law for any breach or threatened breach of this Section 6.7 would therefore be an inadequate remedy and, accordingly, Purchaser and Sellers shall, in addition to all other available remedies (including, without limitation, seeking such damages as either can show it has sustained by reason of such breach and/or the exercise of all other rights either has under this Agreement), be entitled to seek injunctive relief, specific performance and other equitable remedies without the necessity of showing actual damages or posting bond.
(h) Purchaser and Sellers understand and acknowledge that the restrictive covenants and other agreements contained in this Section 6.7 are an essential part of this Agreement and the transactions contemplated hereby and thereby. It is the intention of the parties that, if any of the restrictions or covenants contained herein are held to cover a geographic area or to be for a length of time that is not permitted by Applicable Law, 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 of no effect, but to the extent that such provision would then be valid or enforceable under Applicable Law, such provision shall be construed and interpreted or reformed to provide for a restriction or covenant having the maximum enforceable geographic area, time period and other provisions as shall be valid and enforceable under Applicable Law.
(i) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 6.7 shall apply to any Restricted Entity that is or becomes an Affiliate of Restricted Entity following the date that neither Sellers (with respect to their Subsidiaries) nor HSBC Holdings Plc (with respect to other Affiliates of Sellers), directly or indirectly, own 20% or more of the outstanding voting power of such Person or no longer have the power to appoint a majority of the members of the board of directors or comparable governing body of such Person; provided that the primary purpose of Sellers or HSBC Holdings Plc ceasing to have such ownership or power is not evading the restrictions set forth in this Section 6.7.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (HSBC Finance Corp)
Non-Solicitation; Non-Competition. (a) The Seller Parties agree thatWithout MLCC’s prior written consent, which may be withheld by MLCC in its sole discretion, neither Cendant nor any of its affiliated entities shall solicit any Mortgagor, or cause any Mortgagor to be solicited, for the period commencing on the Closing Date and expiring on the second anniversary financing of the Closing Dateany Mortgage Loan or any product or service whatsoever that is offered by Mxxxxxx Lynch, they shall not and shall not direct Pierce, Fxxxxx & Sxxxx Incorporated or any of their controlled Affiliates toits affiliated entities including, (i) induce without limitation, any investment or encourage any Employee financial services or products, insurance products or services and brokerage account services. MLCC will cause each Correspondent Lender to reject Buyer’s offer of employment, (ii) solicit for employment or any similar arrangement any Transferred Employee or (iii) hire or assist any other Person in hiring any Transferred Employee; provided, however, that this Section 6.10(a) shall not prohibit general solicitations for employment through advertisements or other means or apply to any Employees that are not Transferred Employees or Transferred Employees that are terminated be bound by the Buyer after the Closing DateProvisions Against Solicitation.
(b) The Seller Parties agree thatWithout Cendant’s prior written consent, for which may be withheld by Cendant in its sole discretion, until after the period commencing on the Closing Date and expiring on the third anniversary expiration or earlier termination of this Amendment No. 1, neither MLCC nor any of its affiliated entities shall enter into Wholesale Lender relationships with any of the Closing Date, they shall not and shall direct any of their controlled Affiliates not to, engage, either directly or indirectly, alone or with others, as stockholders or otherwise in any Competitive Business, including, for the avoidance of doubt, through the use of any knowledge of the Business to promote business with advertisers and agencies through competitors of the Business. Notwithstanding the foregoing, the Seller Parties and their Affiliates shall be permitted to acquire any Person, division or business that competes with the Business if the good faith, projected revenue of such Person, division or business that is attributable to the business of the Business for the calendar year in which the sale is consummated is less than following: (i) $5 million and )[* * *], (ii) ten percent (10%) [* * *]with the sole exception of the aggregateWholesale Lenders identified in Exhibit C attached hereto, good faith, projected revenue and (iii) any of the PersonWholesale Lenders identified in Exhibit B attached hereto (the “Restricted Correspondent Lenders”). The foregoing notwithstanding, division or business for however, it is agreed that MLCC may enter into Wholesale Lender relationships with the same calendar year, Restricted Correspondent Lenders provided that the portion of the acquired Person, division or business only Mortgage Loan products that is attributable to the business that competes with the Business shall be terminated or disposed of within six (6) months of such acquisition.
(c) Buyer agrees that, for the period commencing on the Closing Date and expiring on the second anniversary of the Closing Date, Buyer shall not and shall not direct any of their controlled Affiliates made available to, (i) solicit for employment or any similar arrangement any employee of a Seller Party or any of its Affiliates who is purchased from, such Restricted Correspondent Lenders shall be Mortgage Loans that are not a Transferred Employee or (ii) hire or assist any other Person in hiring any currently available to such employee; provided, however, that this Section 6.10(d) shall not prohibit general solicitations for employment Restricted Correspondent Lenders through advertisements or other means or apply to any such employee who is terminated by a Seller Party or any of its Affiliates after the Closing DateCendant.
Appears in 1 contract
Non-Solicitation; Non-Competition. (a) The Seller Parties agree that, for the period commencing on the Closing Date and expiring on the second anniversary of the Closing Date, they shall not and shall not direct any of their controlled Affiliates to, (i) induce or encourage any Employee Recognizing the special importance to reject BuyerGFI of this subparagraph “D” of paragraph “5”, the parties hereto agree that in addition to other consideration tendered by GFI to Fewer, GFI shall pay and Fewer shall accept eligibility to receive the Additional Bonus as added compensation for Fewer’s offer compliance with the provisions of employmentthis subparagraph “D”. Moreover, during the periods contemplated by subparagraphs (ii) solicit for employment or any similar arrangement any Transferred Employee or and (iii) hire or assist any other Person in hiring any Transferred Employee; providedGFI may also pay Fewer the Base Salary and Additional Bonus less the value of GFI’s damages, howeverif any, that this Section 6.10(asuch payment to be made and commenced within twenty (20) business days of Fewer’s receipt of written demand from Fewer for such payment, which demand shall not prohibit general solicitations for employment through advertisements or other means or apply to any Employees that are not Transferred Employees or Transferred Employees that are terminated by detail and identify Fewer’s new employer and the Buyer after the Closing Date.precise nature of his contemplated new employment;
(bii) The Seller Parties agree thatFewer agrees to refrain, for the period commencing on the Closing Date and expiring on the third anniversary of the Closing Date, they shall not and shall direct any of their controlled Affiliates not to, engage, either directly or indirectly, alone during the Initial Term, any Subsequent Terms, and for two hundred and sixty (260) business days thereafter (collectively the “Period of Restriction”), from accepting business from, doing business with, inducing or soliciting any GFI Customers to whom Fewer provided any services while employed by GFI, to do business with othersFewer or any other person or entity except on behalf of GFI or as authorized in writing by GFI;
(iii) After expiration of the Initial Term or any Subsequent Term, as stockholders applicable, Fewer may engage in activities competitive with those rendered by GFI, so long as Fewer refrains from performing such services within the New York metropolitan area during the one hundred and ninety (190) business days following termination of this Agreement. Except as permitted under this Agreement, during the Period of Restriction, Fewer agrees to refrain, directly or otherwise indirectly, from having any interest in any Competitive Businessbrokerage business (except save by way of portfolio investment in shares quoted on a recognized stock exchange), includingwhether as a shareholder, for the avoidance of doubtdirector, through the use of any knowledge of the Business to promote business with advertisers and agencies through competitors of the Business. Notwithstanding the foregoingofficer, the Seller Parties and their Affiliates shall be permitted to acquire any Personemployee, division partner, proprietor, joint venturer, consultant or business that competes with the Business if the good faith, projected revenue of such Person, division or business that is attributable otherwise;
(iv) notwithstanding anything else contained herein to the business contrary, it is specifically acknowledged by the parties as a condition of entering into this Agreement that during the Business for Notice Period GFI may elect to reassign Fewer to different duties and responsibilities including those requiring assignment of Fewer to a different place of employment. During the calendar year Notice Period, GFI shall continue to provide to Fewer the compensation and benefits set forth in which the sale is consummated is less than (i) $5 million and (ii) ten percent (10%) of the aggregate, good faith, projected revenue of the Person, division or business for the same calendar yearparagraph “3” herein, provided that the portion Fewer is not otherwise in default of the acquired Person, division or business that is attributable to the business that competes with the Business shall be terminated or disposed of within six (6) months of such acquisition.his obligations hereunder; and
(cv) Buyer agrees thatFEWER ACKNOWLEDGES THAT HE UNDERSTANDS THE PROHIBITIONS CONTAINED IN SUBPARAGRAPH “D” OF PARAGRAPH “5” AND THAT HE HAS RECEIVED ADDED COMPENSATION THAT HE WOULD NOT OTHERWISE BE ENTITLED TO RECEIVE, for the period commencing on the Closing Date and expiring on the second anniversary of the Closing DateIN ORDER TO INSURE HIS COMPLIANCE WITH SAID PROVISIONS AND TO REMOVE OR OTHERWISE WAIVE ANY POSSIBILITY, Buyer shall not and shall not direct any of their controlled Affiliates to, (i) solicit for employment or any similar arrangement any employee of a Seller Party or any of its Affiliates who is not a Transferred Employee or (ii) hire or assist any other Person in hiring any such employee; provided, however, that this Section 6.10(d) shall not prohibit general solicitations for employment through advertisements or other means or apply to any such employee who is terminated by a Seller Party or any of its Affiliates after the Closing DateCLAIM OR ASSERTION THAT HIS COMPLIANCE WILL IMPOSE ANY UNDUE HARDSHIP UPON HIM.
Appears in 1 contract
Non-Solicitation; Non-Competition. (a) The Seller Parties agree that, Parent agrees that for the period commencing on the Closing Date and expiring on the second (2nd) anniversary of the Closing Date, they shall not and shall not direct Date neither it nor any of their controlled its Affiliates to, will directly or indirectly (i) induce or encourage any Employee employees of the Business to reject Buyer’s offer of employment or to accept any other position or employment, (ii) solicit for employment or any similar arrangement any Transferred Employee Employee, or (iii) hire or assist any other Person in hiring any Transferred Employee; provided, however, that this Section 6.10(a5.27(a) shall not prohibit apply to (x) general solicitations for by Seller Parent or any of its Affiliates; (y) solicitations undertaken by a third party on behalf of Seller Parent or any of its Affiliates without Seller Parent requesting the recruiting of such Person and (z) any Person whose employment through advertisements or other means or apply to any Employees that are not Transferred Employees or Transferred Employees that are is terminated by the Buyer after following the Closing Date(without prior solicitation in violation of this Section 5.27(a)).
(b) The Seller Parties agree that, for the period commencing on the Closing Date and expiring on the third anniversary of the Closing Date, they shall not and shall direct any of their controlled Affiliates not to, engage, either directly or indirectly, alone or with others, as stockholders or otherwise in any Competitive Business, including, for the avoidance of doubt, through the use of any knowledge of the Business to promote business with advertisers and agencies through competitors of the Business. Notwithstanding the foregoing, the Seller Parties and their Affiliates shall be permitted to acquire any Person, division or business that competes with the Business if the good faith, projected revenue of such Person, division or business that is attributable to the business of the Business for the calendar year in which the sale is consummated is less than (i) $5 million and (ii) ten percent (10%) of the aggregate, good faith, projected revenue of the Person, division or business for the same calendar year, provided that the portion of the acquired Person, division or business that is attributable to the business that competes with the Business shall be terminated or disposed of within six (6) months of such acquisition.
(c) Buyer Parent agrees that, for the period commencing on the Closing Date and expiring on the second Non-compete Expiration Date, neither it nor any of its Affiliates shall compete, either directly or indirectly, alone or with others, as stockholders or otherwise, with the Business; provided that nothing in this Section 5.27(b) shall restrict Seller Parent from (i) owning up to 5% of the outstanding voting stock of any Person competing with the Business provided that such ownership interest shall be passive and no officer or employee of Seller Parent or any of its Subsidiaries shall be engaged in the management or serve as a director, officer or employee of such Person, (ii) hereafter acquiring and continuing to own a Person that owns, operates or otherwise competes with the Business if such operations account for no more than 25% of such acquired Person’s consolidated revenues at the time of such acquisition and (iii) hereafter be acquired or merge or otherwise be consolidated into by a Person that competes with the Business; provided that neither such acquired Person nor Seller Parent or any of its Subsidiaries shall use a Terex brand in connection with the operations of such acquired or acquiring Person or provide replacement parts on after sales services with respect to products of the Business. “Non-compete Expiration Date” shall mean the fifth (5th) anniversary of the Closing Date, Buyer shall not and shall not direct any of their controlled Affiliates to, (i) solicit for employment or any similar arrangement any employee of a ; provided that neither Seller Party or Parent nor any of its Affiliates who is not Subsidiaries shall (a) use a Transferred Employee Terex brand, trademark or tradename in connection with any business that competes with the Business prior to the tenth (10th) anniversary of the Closing Date or (iib) hire provide replacement parts or assist any other Person in hiring any such employee; provided, however, that this Section 6.10(dafter sales services targeted at products manufactured by the Business as of the Closing Date prior to the tenth (10th) shall not prohibit general solicitations for employment through advertisements or other means or apply to any such employee who is terminated by a Seller Party or any anniversary of its Affiliates after the Closing Date.
Appears in 1 contract
Samples: Asset and Stock Purchase Agreement (Bucyrus International Inc)
Non-Solicitation; Non-Competition. (a) The Seller Parties agree that, for the For a period commencing on the Closing Date and expiring on the second anniversary of twenty-four (24) months following the Closing Date, they Seller shall not, and shall cause the Seller Subsidiaries not to, directly or indirectly, employ, hire, enter into an agency or consulting relationship with, recruit or solicit for employment any Transferred Employee; provided that the foregoing restrictions shall not and shall not direct any of their controlled Affiliates to, apply to (i) induce any Transferred Employee who ceased to be employed by Purchaser or encourage its Subsidiaries prior to any Employee to reject Buyer’s offer solicitation by or the commencement of employmentany discussions with Seller or the Seller Subsidiaries, (ii) solicit for employment any general solicitations not targeted at Transferred Employees (including through the use of bona fide third-party recruiting firms not directed at Transferred Employees) or general advertisements in any similar arrangement newspaper, magazine, trade publication, electronic medium or other media and any Transferred Employees who respond thereto and (iii) any Transferred Employee who contacts Seller or (iii) hire any Seller Subsidiary on his or assist her own initiative and without any other Person in hiring solicitation or encouragement by or on behalf of Seller or any Transferred Employee; provided, however, that this Section 6.10(a) shall not prohibit general solicitations for employment through advertisements or other means or apply to any Employees that are not Transferred Employees or Transferred Employees that are terminated by the Buyer after the Closing DateSeller Subsidiary.
(b) The Seller Parties agree that, for the For a period commencing on the Closing Date and expiring on the third anniversary of three (3) years following the Closing Date, they Seller shall not not, and shall direct any of their controlled Affiliates cause the Seller Subsidiaries not to, engagedirectly engage in the Business or activities, either directly or indirectlyin each case, alone or with others, as stockholders or otherwise in any Competitive Business, including, for the avoidance of doubt, through the use of any knowledge territories set forth on Section 5.11(b) of the Seller Disclosure Schedule (the “Restricted Market”) that would compete with the Business in the Restricted Market (the “Restricted Purchaser Business”); provided that notwithstanding anything to promote business with advertisers and agencies through competitors of the Business. contrary in this Agreement, the Restricted Purchaser Business shall not refer to or include any geography other than the Restricted Market or be deemed to apply to activities outside the Restricted Market.
(c) Notwithstanding the foregoing, nothing in Section 5.11(a) shall in any way prohibit or prevent Seller or any of the Seller Parties and Subsidiaries or any of their respective Affiliates shall be permitted to acquire any Person, division or business that competes with the Business if the good faith, projected revenue of such Person, division or business that is attributable to the business of the Business for the calendar year in which the sale is consummated is less than from:
(i) $5 million and acquiring any securities or interests (iiwhether by way of a purchase, merger, consolidation or other transaction) in any Person:
(A) if such securities or interests represent less than ten percent (10%) of the aggregatevoting interests in such Person; provided, good faith, projected revenue that none of Seller or any of the Person, division Seller Subsidiaries is an active participant in the management or business operations of (or has any Representative serving on the board of directors or similar governing body of) such Person or Affiliates;
(B) if both (x) such Person derived ten percent (10%) or less of its total annual revenues in the most recent fiscal year from activities that constitute a Restricted Purchaser Business or (y) such total annual revenues from Restricted Purchaser Business represent less than ten percent (10%) of the total annual revenues of the Business for the same calendar yearfiscal year of the Business ended December 31, 2020; or
(C) if such Person would be prohibited under clause (B) (including if such Person derived more than ten percent (10%) of its total annual revenues in the most recent fiscal year from activities that constitute a Restricted Purchaser Business) and Seller and the Seller Subsidiaries divest or otherwise cause the Restricted Purchaser Business to comply with clause (B) (including to constitute less than ten percent (10%) of such Person’s total annual revenues) within twelve (12) months following such acquisition, provided that that, in the portion case of each of clauses (A), (B) and (C), a primary purpose of such transaction is not to evade the obligations of the acquired Person, division Seller under Section 5.11(b) (that would otherwise apply absent this Section 5.11(c)) or business that is attributable to engage in a Restricted Purchaser Business; and/or
(ii) exercising its rights or complying with its obligations under this Agreement or any of the business that competes with the Business shall be terminated or disposed of within six (6) months of such acquisitionAncillary Agreements.
(cd) Buyer agrees thatNotwithstanding the foregoing, for the period commencing on the Closing Date and expiring on the second anniversary provisions of the Closing Date, Buyer shall not and shall not direct any of their controlled Affiliates to, Section 5.11(b) (i) solicit for employment shall not restrain or prohibit, and shall terminate in their entirety upon, the consummation of any similar arrangement any employee Change of a Seller Party or any of its Affiliates who is not a Transferred Employee or Control, and (ii) hire or assist any other Person in hiring any such employee; provided, however, that this Section 6.10(d) shall not restrain or prohibit general solicitations for employment through advertisements any activities, actions or other means conduct of any Person that is not directly or apply to indirectly controlled by Seller, including any such employee who is terminated by a joint ventures, partnerships or co-investment vehicles that neither Seller Party nor any of the Seller Subsidiaries controls, or any investments in funds in which Seller has no right of its Affiliates after decision with respect to the Closing Dateinvestment strategy of such funds, and in each case in which any Restricted Purchaser Business is not directed or influenced by Seller (provided that in each case of this clause (ii) references to Seller shall include Seller’s successors and assigns).
Appears in 1 contract
Non-Solicitation; Non-Competition. (a) The Seller Parties agree that, for the For a period commencing on the Closing Date and expiring on the second anniversary of 18 months after the Closing Date, they Seller shall not not, and shall not direct any of their cause Seller Parent and its controlled Affiliates (other than Seller) not to, (i) directly or indirectly, hire or employ, or cause, solicit, induce or encourage any Employee Continuing Employees to reject Buyer’s offer of employment, (ii) solicit for leave their employment with Purchaser or any similar arrangement any Transferred Employee or (iii) hire or assist any other Person in hiring any Transferred EmployeeAffiliate thereof; provided, however, that this Section 6.10(a) the foregoing shall not prohibit (i) general solicitations for of employment through advertisements or other means or apply to any Employees that are not Transferred specifically directed toward Continuing Employees or Transferred Employees that are terminated the hiring of such employees in response thereto, or (ii) the solicitation, hiring, employment or engagement of any Continuing Employee who has not been employed by the Buyer after the Closing DatePurchaser or any Affiliate thereof for a period of three months.
(b) The Seller Parties agree that, for the For a period commencing on the Closing Date and expiring on the third anniversary of three years after the Closing Date, they Seller shall not not, and shall direct any of their cause Seller Parent and its controlled Affiliates (other than Seller) not to, engage, either directly or indirectly, alone own, manage, operate or with otherscontrol any enterprise, regardless of form, engaged in developing, manufacturing, marketing, selling or distributing, within the United States of America, Canada and Mexico, substrate roll goods using airlaid web forming processes, including spooled and festooned products, that are manufactured by the Business as of the date of this Agreement (the “Seller Restricted Business”); provided that the foregoing restrictions shall not: (i) apply to any business acquired by Seller, Seller Parent or any controlled Affiliate of Seller Parent other than Seller, so long as revenue from the sale of products manufactured by any Seller Restricted Business comprising a portion of the acquired business does not comprise more than 20% of such acquired business’ total revenue; provided, further, that nothing herein shall prevent Seller, Seller Parent or any controlled Affiliate of Seller Parent other than Seller from acquiring a business in which more than 20% of such acquired business’ total revenue is comprised of revenue from the sale of products manufactured by any Seller Restricted Business, so long as Seller, Seller Parent or controlled Affiliate of Seller Parent other than Seller, as stockholders applicable, within one year following the date of such acquisition, divests the portion of such acquired business that constitutes a Seller Restricted Business; or (ii) restrict Seller, Seller Parent or any controlled Affiliate of Seller Parent other than Seller from acquiring or owning securities of any Person engaged in a Seller Restricted Business, so long as such securities do not constitute more than 10% of all equity securities of such Person and, except for exercising minority voting rights with respect to such securities, Seller, Seller Parent or controlled Affiliate of Seller Parent other than Seller, as applicable, does not otherwise actively manage, operate or control the business activities of such Person.
(c) Seller acknowledges and agrees that the remedies at law available for breach of its obligations under this Section 7.13 would be inadequate; therefore, in addition to any other rights or remedies that Purchaser may have at law or in equity, Purchaser shall be entitled to temporary and permanent injunctive relief in any Competitive Businessproceeding that may be brought to enforce any provision contained in this Section 7.13, includingwithout the necessity of proof of actual damage.
(d) Seller acknowledges and agrees that the covenants of Seller contained in this Section 7.13 are being provided as an inducement to Purchaser to enter into this Agreement and such covenants include reasonable limitations with respect to time, geographical area and scope of activity that do not impose a greater restraint on Seller than is necessary to protect the legitimate business interests of Purchaser.
(e) In the event that any covenant contained in this Section 7.13 is determined by any court of competent jurisdiction to be unenforceable for any reason whatsoever, then such covenant will not be deemed void, and the Parties agree that (i) the limitations with respect to time, geographical area and scope of activity included in such covenant, as applicable, may be modified by such court to instead reflect the maximum limitations with respect thereto that are enforceable and (ii) solely for purposes of the operation of such covenant in the context of the controversy in which such determination is made, such covenant will be deemed amended in accordance with such modification. For the avoidance of doubt, through the use Parties specifically acknowledge and agree that (A) it is their continuing desire for each covenant contained in this Section 7.13 to be enforced to the full extent of its terms, but (B) if a court of competent jurisdiction finds the limitations included in any knowledge of the Business to promote business with advertisers and agencies through competitors of the Business. Notwithstanding the foregoingsuch covenant unenforceable, the Seller Parties and their Affiliates shall be permitted court should redefine the limitations included in such covenant so as to acquire any Person, division or business that competes comply with the Business if the good faith, projected revenue of such Person, division or business that is attributable to the business of the Business for the calendar year in which the sale is consummated is less than (i) $5 million and (ii) ten percent (10%) of the aggregate, good faith, projected revenue of the Person, division or business for the same calendar year, provided that the portion of the acquired Person, division or business that is attributable to the business that competes with the Business shall be terminated or disposed of within six (6) months of such acquisitionapplicable Law.
(cf) Buyer agrees thatIf Seller has violated Section 7.13(a) or Section 7.13(b), for then the time period set forth in such Section shall automatically be extended by a period of time equal in length to the period commencing on the Closing Date and expiring on the second anniversary of the Closing Date, Buyer shall not and shall not direct any of their controlled Affiliates to, (i) solicit for employment during which such violation or any similar arrangement any employee of a Seller Party or any of its Affiliates who is not a Transferred Employee or (ii) hire or assist any other Person in hiring any such employee; provided, however, that this Section 6.10(d) shall not prohibit general solicitations for employment through advertisements or other means or apply to any such employee who is terminated by a Seller Party or any of its Affiliates after the Closing Dateviolations occurred.
Appears in 1 contract
Non-Solicitation; Non-Competition. (a) The Seller Parties agree thatDuring the Restricted Period, each of the Sellers agrees that neither it nor any of its controlled Affiliates shall, without Apollo’s prior written consent, directly or indirectly (including, without limitation, through the Sellers’ or their respective controlled Affiliates’ representatives), solicit or hire for employment (whether as an employee, consultant or temporary employee) any employee of the period commencing on Subject Companies, except that this paragraph shall not preclude the Closing Date and expiring on Sellers or any other person from entering into discussions with or soliciting or hiring any person who (i) responds to any public advertisement or general solicitation, (ii) has left the second anniversary employ of the Subject Companies or their Affiliates three months prior to commencement of discussions with the soliciting party or (iii) has been terminated by the Subject Companies or their Affiliates.
(b) During the Restricted Period, each of the Sellers agrees that neither it nor any of its controlled Affiliates shall, without Apollo’s prior written consent, directly or indirectly (including, without limitation, through the Sellers’ or their respective controlled Affiliates’ representatives), solicit, endeavor to entice away from the Subject Companies or their Affiliates, or otherwise directly or indirectly interfere with the relationship of the Subject Companies or any of their Affiliates, with any Person or entity who is as of the Closing Date, they shall not and shall not direct any of their controlled Affiliates to, (i) induce or encourage any Employee to reject Buyer’s offer of employment, (ii) solicit for employment or any similar arrangement any Transferred Employee or (iii) hire or assist any other Person in hiring any Transferred Employee; provided, however, that this Section 6.10(a) shall not prohibit general solicitations for employment through advertisements or other means or apply to any Employees that are not Transferred Employees or Transferred Employees that are terminated by was within the Buyer after the Closing Date.
(b) The Seller Parties agree that, for the twelve month period commencing on the Closing Date and expiring on the third anniversary of preceding the Closing Date, they shall not and shall direct any of their controlled Affiliates not toa customer, engageclient (including other broker dealers) or, either directly or indirectly, alone or with others, as stockholders or otherwise in any Competitive Business, including, for to the avoidance of doubt, through the use of any knowledge of the Business to promote business with advertisers and agencies through competitors Sellers, a prospective customer or client (including other broker dealers), of the Business. Notwithstanding the foregoing, the Seller Parties and their Affiliates shall be permitted to acquire any Person, division or business that competes with the Business if the good faith, projected revenue of such Person, division or business that is attributable to the business of the Business for the calendar year in which the sale is consummated is less than (i) $5 million and (ii) ten percent (10%) of the aggregate, good faith, projected revenue of the Person, division or business for the same calendar year, provided that the portion of the acquired Person, division or business that is attributable to the business that competes with the Business shall be terminated or disposed of within six (6) months of such acquisitionSubject Companies.
(c) Buyer During the Restricted Period, each of the Sellers agrees thatthat neither it nor any of its controlled Affiliates shall, without Apollo’s prior written consent, directly or indirectly, for itself or on behalf of or in conjunction with any Person, whether as an agent, partner, joint venture, investor or otherwise, engage in any Competitive Enterprise; provided that the period commencing on the Closing Date and expiring on the second anniversary of the Closing Date, Buyer restrictions contained in this Section 4.8(c) shall not apply to the business conducted by Hatteras Funds, LLC and its Subsidiaries of sponsoring and distributing investment companies and private investment funds (other than non-traded REITS and BDCs) and shall not direct any of their controlled Affiliates toapply to StratCap. The restrictions applicable to the Hatteras Funds, (i) solicit for employment or any similar arrangement any employee of LLC pursuant to this section shall terminate following a Seller Party or any of its Affiliates who is not a Transferred Employee or (ii) hire or assist any other Person in hiring any such employee; providedbona fide sale, however, that this Section 6.10(d) shall not prohibit general solicitations for employment through advertisements transfer or other means or apply disposition of all of the capital stock of the applicable entity to any such employee who is terminated by a Seller Party or any an Independent Third Party.
(d) For purposes of its Affiliates after the Closing Date.this Agreement:
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (RCS Capital Corp)
Non-Solicitation; Non-Competition. (a) The Seller Each of the Parties agree that, for agrees that until the period commencing on fourth anniversary of the Closing Date it shall not (and expiring shall cause its respective Subsidiaries and controlled Affiliates not to) directly, or indirectly through another Person, solicit, induce, hire or attempt to solicit, induce or hire, (i) in the case of Sellers, any employee of any Buyer, Acquired Company or any of their respective Affiliates, or (ii) in the case of Buyers, any employee of Sellers or its Affiliates, in each case, to leave the employ of the such Person, except that the foregoing shall not preclude the solicitation of any such employee resulting from general advertisements for employment placed by the hiring Party (including any recruitment efforts conducted by any recruitment agency, provided that the hiring Party has not directed such recruitment efforts at any of the employees of the other Party). Notwithstanding anything herein to the contrary, the no-hire restriction restricting Sellers and their respective Affiliates pursuant to this Section 5.9(a) shall be limited solely to not hiring or attempting to hire the Persons set forth on Section 5.9(a) of the second Disclosure Schedule.
(b) In consideration of the Purchase Price, each Seller agrees that until the fourth anniversary of the Closing Date, they it shall not (and shall not direct any of their cause its Subsidiaries and controlled Affiliates not to) directly, or indirectly through another Person, (i) induce as an owner, equity or encourage profit interests holder (except as an investor holding not more than five percent of the outstanding capital stock of a publicly held company), partner, employee, consultant, director, manager, officer, principal, agent, trustee, advisor, independent contractor or other service provider (of an executive, management, marketing, selling, research and development, agency, administrative, financial or consulting nature, or otherwise), engage in or assist others in engaging in any Employee to reject Buyer’s offer of employmentCompeting Business in any capacity, or (ii) solicit for employment solicit, entice, encourage, induce or influence, or attempt to solicit, entice, encourage induce or influence, any similar arrangement Person who is a customer, supplier or distributor of any Transferred Employee Acquired Company, Buyers or (iii) hire or assist any other Person in hiring any Transferred Employee; provided, however, that this Section 6.10(a) shall not prohibit general solicitations for employment through advertisements or other means or apply to any Employees that are not Transferred Employees or Transferred Employees that are terminated by the Buyer after the Closing Date.
(b) The Seller Parties agree that, for the period commencing on their respective Affiliates as of the Closing Date and expiring on the third anniversary of the Closing Date, they shall not and shall direct any of their controlled Affiliates not to, engage, either directly or indirectly, alone or with others, as stockholders or otherwise in any Competitive Business, including, for the avoidance of doubt, through the use of any knowledge of the Business to promote (A) cease doing business with advertisers and agencies through competitors of the Business. Notwithstanding the foregoingsuch Acquired Company, the Seller Parties and Buyers or their respective Affiliates shall be permitted to acquire any Person, division or business that competes (B) materially interfere with its relationship with the Business if the good faithAcquired Companies, projected revenue of such Person, division Buyers or business that is attributable to the business of the Business for the calendar year in which the sale is consummated is less than (i) $5 million and (ii) ten percent (10%) of the aggregate, good faith, projected revenue of the Person, division or business for the same calendar year, provided that the portion of the acquired Person, division or business that is attributable to the business that competes with the Business shall be terminated or disposed of within six (6) months of such acquisitiontheir respective Affiliates.
(c) Buyer agrees thatFrom and after the Closing, for the period commencing on the Closing Date and expiring on the second anniversary of the Closing Date, Buyer neither Party shall not (and shall cause its Subsidiaries and controlled Affiliates not direct to) directly, or indirectly through another Person, disparage the other Party (including with respect to Buyers, the Acquired Companies), their respective Affiliates, or any of their controlled Affiliates torespective equityholders, (i) solicit for employment directors, managers or any similar arrangement any employee of a Seller Party officers, or any of its Affiliates who is not a Transferred Employee or (ii) hire or assist any other Person in hiring any such employee; providedthe Party’s, however, that this Section 6.10(d) shall not prohibit general solicitations for employment through advertisements or other means or apply to any such employee who is terminated by a Seller Party or any of their respective Subsidiaries’ (including the Acquired Companies’) products or services.
(d) If a Party or its Affiliates after breaches, or threatens to commit a breach of, this Section 5.9, the Closing Dateother Parties shall have the right and remedy to have this Section 5.9 specifically enforced by any court of competent jurisdiction, it being agreed that any breach or threatened breach of this Section 5.9 would cause irreparable injury to Buyers and their Affiliates, on the one hand, or Sellers and its Affiliates (other than the Acquired Companies), on the other hand, as the case may be, and that money damages would not provide an adequate remedy to Buyers and their Affiliates, on the one hand, or Sellers and their Affiliates (other than the Acquired Companies), on the other hand, as the case may be.
(e) Each subsection of this Section 5.9 constitutes a separate and distinct provision. If any provision of this Section 5.9 is finally judicially determined to be invalid, ineffective or unenforceable, such determination shall apply only in the jurisdiction in which such adjudication is made and every other provision of this Section 5.9 shall remain in full force and effect. The invalid, ineffective or unenforceable provision shall, without further action by the Parties, be automatically amended to effect the original purpose and intent of the invalid, ineffective or unenforceable provision, except that such amendment shall apply only with respect to the operation of such provision in the particular jurisdiction in which such adjudication is made.
Appears in 1 contract
