PROTECTION OF GOODWILL. 8.1 The Seller hereby undertakes to procure that (except as otherwise agreed in writing with the Buyer) neither the Seller not any of its subsidiary undertakings from time to time will either solely or jointly with any other person (either on its own account or as the agent of any other person): (a) for a period of 2 years from Completion carry on or be engaged or (except as the holder of shares in a listed company which confer not more than five per cent. of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the type of business carried on by any member of the Group at Completion in the United Kingdom and Germany; (b) for a period of 2 years from Completion induce, solicit or endeavour to entice to leave the service or employment or any member of the Group, any person who during the period of 6 months prior to Completion was an employee of any member of the Group occupying a senior or managerial position and likely (in the opinion of the Buyer) to be: (i) in possession of confidential information relating to; or (ii) able to influence the customer relationships or connections of any member of the Group provided that this shall not restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or (iii) for a period of two years from Completion, canvass, solicit, approach or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company any person for orders or instructions in respect of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom during the period of 12 months immediately prior to Completion. 8.2 Nothing in clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings from: (a) carrying on or being engaged in or economically, interested in any business which, at the date of this agreement, it currently carries on or is engaged in or economically interested in or any reasonable extension or development thereof outside the United Kingdom and Germany; (b) being the holder of shares (conferring not more than five per cent. of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a); (c) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that: (i) the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interest; and (ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquired. 8.3 The Seller agrees that the undertakings contained in this clause 8 are reasonable and are entered into for the purpose of protecting the goodwill of the business of each member of the Group as carried out at Completion. 8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit of any other person directly or indirectly represent itself to be connected with or interested in the business of the Group. 8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of the Buyer and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion of the courts) be obtained.
Appears in 1 contract
Samples: Share Purchase Agreement (TRM Corp)
PROTECTION OF GOODWILL. 8.1 6.1 The Seller Warrantor hereby undertakes to the Purchaser to procure that (except as otherwise agreed in writing with the BuyerPurchaser) neither the Seller he will not any of its subsidiary undertakings from time to time will either solely or jointly with any other person (either on its his own account or as the agent of any other person):
(a) for a period of 2 3 years from Completion carry on or be engaged or concerned or (except as the holder of shares in a listed company which confer not more than five per cent. 1% of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the type Business.
6.2 Xxxxxx Xxxxxxx XxXxxxxx hereby undertakes to the Purchaser to procure that (except as otherwise agreed in writing with the Purchaser) he will not either solely or jointly with any other person (either on his own account or as the agent of business carried on by any member of the Group at Completion in the United Kingdom and Germany;
(bother person) for a period of 2 the lesser of 18 months from Completion and 6 months following the termination of his employment by the Company carry on or be engaged or concerned or (except as the holder of shares in a listed company which confer not more than 1% of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the Business.
6.3 The Warrantor hereby undertakes to procure that (except as otherwise agreed in writing with the Purchaser) he will not either solely or jointly with any other person (either on its own account or as agent of any other person):
6.3.1 for a period of 3 years from Completion solicit or accept the custom of any person in respect of goods or services competitive with those manufactured or supplied by the Group during the period of 12 months immediately prior to Completion, such person having been a customer of the Group in respect of such goods or services during such period;
6.3.2 for a period of 3 years from Completion induce, solicit or endeavour to entice to leave the service or employment or of any member of the Group, Group any person who during the period of 6 12 months prior to Completion was an employee of any member of the Group occupying a senior or managerial position and likely (in the opinion of the BuyerPurchaser) to be:
(ia) in possession of confidential information relating to; or
(iib) able to influence the customer relationships or connections of; or
c) able to influence the technology or inventions of, any member of the Group or the Business; or
6.3.3 use any trade or domain name or e-mail address used by any member of the Group at any time during the 12 months immediately preceding the date of this agreement or any other name intended or likely to be confused with any such trade or domain name or e-mail address.
6.4 The Warrantor and Xxxxxx Xxxxxxx XxXxxxxx undertakes to and covenants with the Purchaser that he will not at any time after Completion do or say anything which is intended to damage the goodwill or reputation of any member of the Group provided that this shall not restrict or the Group as a whole or which may lead to a person to cease to do business with any member of the Seller’s Group from advertising on substantially equivalent terms to those previously offered or otherwise taking steps to recruit (and/or subsequently employing) not engage in business with any person which is or are not specifically aimed at a particular employee or group member of employees of any Group Company; or
(iii) for a period of two years from Completion, canvass, solicit, approach or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company any person for orders or instructions in respect of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom during the period of 12 months immediately prior to CompletionGroup.
8.2 Nothing in clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings from:
(a) carrying on or being engaged in or economically, interested in any business which, at the date of this agreement, it currently carries on or is engaged in or economically interested in or any reasonable extension or development thereof outside the United Kingdom 6.5 The Warrantor and Germany;
(b) being the holder of shares (conferring not more than five per cent. of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:
(i) the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquired.
8.3 The Seller agrees Xxxxxx Xxxxxxx XxXxxxxx each agree that the undertakings contained in this clause 8 6 are reasonable and are entered into for the purpose of protecting the goodwill of the business of each member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit of any other person directly or indirectly represent itself to be connected with or interested in the business of the Group.
8.5 If a breach 6.6 Each undertaking contained in this clause 6 is and shall be construed as separate and severable and if one or more of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not undertakings is held to be sufficient compensation against the public interest or unlawful or in any way an unreasonable restraint of trade or unenforceable in whole or in part for any reason the remaining undertakings or parts thereof, as appropriate, shall continue to bind the Warrantor and/or Xxxxxx Xxxxxxx XxXxxxxx (as appropriate).
6.7 If any undertaking contained in this clause 6 shall be void but would be valid if deleted in part or reduced in application, such undertaking shall apply with such deletion or modification as may be necessary to make it valid and that injunctive relief is reasonable and is likely enforceable. Without prejudice to be essential to safeguard the interests generality of the Buyer foregoing, such period (as the same may previously have been reduced by virtue of this clause 6.6) shall take effect as if reduced by 6 months until the resulting period shall be valid and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion of the courts) be obtainedenforceable.
Appears in 1 contract
PROTECTION OF GOODWILL. 8.1 The Seller hereby 10.1 Each of the Management Sellers undertakes to procure the Buyer (for itself and as trustee for the holders for the time being of the Shares but so that (except the Buyer shall not as otherwise agreed trustee be under any obligation to such holders to enforce the undertakings and may release or waive them in writing with whole or in part as it, in its absolute discretion, thinks fit) that without the Buyer) neither written consent of the Seller Buyer:-
10.1.1 during the Restricted Period he will not in any of its subsidiary undertakings from time to time will either solely capacity whatsoever directly or jointly with any other person (either on its own account or as the agent of any other person):indirectly:
(a) for a period of 2 years from Completion carry on or be engaged or (except as the holder of shares in a listed company which confer not more than five per cent. of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the type of business carried on by any member of the Group at Completion in the United Kingdom and Germany;on; or
(b) for a period of 2 years from Completion induce, solicit or endeavour to entice to leave the service or employment or any member of the Group, any person who during the period of 6 months prior to Completion was an employee of any member of the Group occupying a senior or managerial position and likely (assist in the opinion of the Buyer) to be:
(i) in possession of confidential information relating tocarrying on; or
(iic) able to influence the customer relationships or connections of any member of the Group provided that this shall not restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Companybe engaged in; or
(iiid) concerned or interested in, any activity or undertaking which is the same as, or substantially similar to, the business of any Group Company within the Restricted Territories as carried on within the 18 month period prior to Completion; and
10.1.2 during the Restricted Period he will not for a period the purpose of two years from Completion, any business supplying products or services similar to or capable of being used in substitution for any product or service supplied by any Group Company within the 12 months preceding Completion canvass, solicit, approach solicit or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company any person for orders or instructions in respect who during the period of two years prior to Completion has been a customer of any Group Company or has purchased or agreed or offered to purchase goods from any Group Company or has employed its services competitive with those supplied or who has been canvassed by any Group Company and (otherwise than by general advertising) with whom a view to becoming a customer of any Group Company; and
10.1.3 during the Restricted Period he will not do any act or thing likely to have the effect of causing any supplier of or other person in the habit of dealing with any Group Company has transacted as to be unable or unwilling to deal with any Group Company either at all or in part or on the terms on which it had previously dealt with any Group Company or likely to have the effect of causing any person having a supplier in Germany and/or in contract or arrangement with any Group Company at the United Kingdom date of this Agreement to breach, terminate or modify that contract or arrangement or to exercise any right under it; and
10.1.4 during the Restricted Period he will not solicit or endeavour to entice away from the Company, employ or offer employment to any person who is at Completion, or who at any time during the period of 12 months immediately prior to Completion, was an Employee (excluding for the avoidance of doubt Xxxxx Xxxxxxxx, Xxxx Xxxxxxxxx, Xxxxxx Xxxx-Xxxxxxx and Cyrille Chevrillon) or Worker employed, or providing services, in the sales and marketing team or in any other team or discipline in the position of principal consultant (or its equivalent) or above nor do any act or thing likely to have the effect of causing any such person to terminate his employment or contract for services with any Group Company whether or not such person would thereby breach his contract of employment or contract for services; and
10.1.5 he will not at any time in connection with any business carried on by him or otherwise howsoever use directly or indirectly or authorise any person to use directly or indirectly any of the Intellectual Property Rights including any of the names or words “Compass” or any names or words similar to or likely to be confused with them or use any distinctive xxxx, style or logo used by any Group Company or any xxxx, style or logo similar to or likely to be confused with them in any manner which is likely to or may result in confusion between or other association with the business, goods, services or other activities of any Group Company including by using the name “Compass” as part of a corporate name, trade name or otherwise.
10.2 Nothing in this Clause 10 shall prevent any Seller from owning not more than five per cent of any class of the issued share capital of a company which is dealt in on a recognised investment exchange (as defined in the Financial Services and Markets Xxx 0000 (as amended)).
10.3 Nothing in Clause 10.1 shall prevent any Management Seller from being employed as a management consultant, or being employed by any business which provides management consulting services, during the Restricted Period provided always that he or she does not compete directly with the business carried on by any Group Company within the 18 month period prior to Completion.
8.2 Nothing 10.4 Each of the Sellers who is not a Management Seller undertakes to the Buyer (for itself and as trustee for the holders for the time being of the Shares but so that the Buyer shall not as trustee be under any obligation to such holders to enforce the undertakings and may release or waive them in clause 8.1 shall prevent whole or restrict in part as it, in its absolute discretion, thinks fit) that without the Seller or any written consent of its subsidiary undertakings from:the Buyer during the Restricted Period he/it will not:-
(a) carrying on or being engaged in or economically, interested 10.4.1 invest in any business which, at the date of this agreement, it currently carries on or is engaged in or economically interested in or any reasonable extension or development thereof outside the United Kingdom and Germany;
(b) being the holder of shares (conferring not more than five per cent. of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:
(i) the Competitive Operations comprise a minor part of the business or competes directly with the business of such company, group any Group Company as carried on within the 18 month period prior to Completion;
10.4.2 solicit or endeavour to entice away from the Company any of companies the Management Sellers or businesses acquired or any other person who is at Completion a senior manager in which the Seller or its relevant subsidiary undertaking has acquired an interestany Group Company; and
(ii) 10.4.3 during the Seller Restricted Period solicit or its relevant subsidiary undertaking disposes endeavour to solicit business from any customer in the habit of the Competitive Operations to a third party outside of the Seller’s dealing with any Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of Company in competition with the business of such company, group of companies or business shall be part of its overall business in which any Group Company within the turnover 18 month period prior to Completion.
10.5 Each of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquired.
8.3 The Seller agrees Sellers have taken independent legal advice and acknowledge that they consider the undertakings contained in this clause 8 are Clause 10 reasonable and are entered into necessary for the purpose of protecting the goodwill proper protection of the business of each member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit of any other person directly or indirectly represent itself to be connected with or interested in the business of the Group.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests legitimate interest of the Buyer and further acknowledge that damages would not be an adequate remedy for breach of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion such undertakings.
10.6 Each of the courts) undertakings contained in Clause 10.1 and Clause 10.4 is separate and severable and shall be obtainedconstrued on that basis. In the event that any of such undertakings is found to be void but would be valid if some part of it were deleted or if the period or extent of it were reduced such undertaking shall apply with such modification as may be necessary to make it valid and effective.
Appears in 1 contract
Samples: Share Purchase Agreement (Information Services Group Inc.)
PROTECTION OF GOODWILL. 8.1 The Seller hereby 10.1 Each Covenantor severally undertakes to procure the Buyer that he will not (except as otherwise agreed other than in writing accordance with the Buyer) neither usual and ordinary course of his directorship of and/or his continuing employment by the Seller not any of its subsidiary undertakings from time to time will either solely Company or jointly with any other person (either on its own account or as the agent of any other person):
(a) for a period of 2 years from Completion carry on or be engaged or (except as the holder of shares in a listed company which confer not more than five per cent. of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the type of business carried on by any member of the Group Buyer Group) directly or indirectly:
10.1.1 within the Restricted Territories, at Completion any time during the Restricted Period, engage in, consult to or be otherwise involved with any business which is carried on in competition with any part of the United Kingdom and GermanyBusiness;
(b) for a period of 2 years from Completion induce, 10.1.2 at any time during the Restricted Period solicit or endeavour to entice solicit the custom of, or deal or endeavour to leave the service or employment or any member of the Groupdeal with, any person who is at the 11/37450980_10 30 Completion Date or, at any time during the period of 6 twelve months prior to the Completion Date, was an employee a customer of any member Target Group Company;
10.1.3 at any time during the Restricted Period interfere or endeavour to interfere with the continuance of supplies to any Target Group Company (or the Group occupying a senior or managerial position and likely (in the opinion of the Buyerterms relating to those supplies) to be:
(i) in possession of confidential information relating to; or
(ii) able to influence the customer relationships or connections of any member of the Group provided that this shall not restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) by any person which who is or are not specifically aimed at the Completion Date or, at any time during the period of twelve months prior to the Completion Date, was a particular employee or group of employees of supplier to any Target Group Company; or
(iii) for a period of two years 10.1.4 at any time during the Restricted Period solicit or entice away, or endeavour to solicit or entice away, from Completion, canvass, solicit, approach the Company or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Target Group Company any Senior Manager whether or not such person for orders or instructions in respect would commit a breach of any goods or services competitive with those supplied his employment contract by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom during the period reason of 12 months immediately prior to Completionleaving service.
8.2 10.2 Nothing contained in clause 8.1 10.1 shall prevent or restrict the Seller or any of its subsidiary undertakings Covenantor from:
(a) carrying on or being engaged in or economically, interested in any business which, at the date of this agreement, it currently carries on or is engaged in or economically interested in or any reasonable extension or development thereof outside the United Kingdom and Germany;
(b) 10.2.1 being the holder or beneficial owner by way of shares a bona fide personal investment, of any class of securities in any company if such class of securities is listed, or dealt in, on a recognised investment exchange (conferring not within the meaning of Part XVIII of the Financial Services and Markets Act 2000) provided that he neither holds nor is beneficially interested in more than five a total of 5 per cent. cent of any single class of the votes which would normally be cast at a general meeting of securities in that company) ; or
10.2.2 placing or debentures procuring the placing of a company which is engaged in any business referred recruitment advertisement for employees and communicating with or recruiting, employing or otherwise contracting with any person who responds to in clause 8.1(a);such an advertisement.
(c) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach 10.3 Each of the undertaking undertakings contained in clause 8.1 10.1 is a separate undertaking by each Covenantor and shall be enforceable by the Buyer (the “Competitive Operations”), as part on its own behalf and on behalf of a larger acquisition each Buyer Group Company) separately and independently of its right to enforce any one or series of related acquisitions provided that:
(i) the Competitive Operations comprise a minor part more of the business or the business of such company, group of companies or businesses acquired or other covenants contained in which the Seller or its relevant subsidiary undertaking has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquired10.
8.3 The Seller 1. Each Covenantor agrees (having taken independent legal advice) that the undertakings contained in this clause 8 10.1 are reasonable and are entered into necessary for the purpose of protecting the goodwill protection of the business of each member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit of any other person directly or indirectly represent itself to be connected with or interested in the business of the Group.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the legitimate interests of the Buyer and of the Company and any other Target Group Company and that injunctive relief (in addition these restrictions do not work harshly on him. It is nevertheless agreed that, if any such undertaking is found to be void but would be valid if some part were deleted, then such undertaking shall apply with such deletions as may be necessary to make it valid and enforceable. The parties further agree that, without prejudice to any other remedy which may be available to the Buyer, the Buyer shall be entitled to seek injunctive or other equitable remediesrelief in relation to any breach or prospective breach of the undertakings in clause 10.1, it being acknowledged that an award of damages may not be an adequate remedy for such a breach.
10.4 For the purposes of clause 10.1:
10.4.1 directly or indirectly" shall (without limiting the expression) may mean any Covenanter acting either alone or jointly with or on behalf of any other 11/37450980_10 31 person whether as principal, partner, manager, employee, contractor, director, consultant, investor (subject to the discretion of the courtsclause 10.2) be obtained.or otherwise;
Appears in 1 contract
Samples: Share Sale Agreement (Agco Corp /De)
PROTECTION OF GOODWILL. 8.1 5.1 The Seller Sellers hereby undertakes to procure undertake that (except as otherwise agreed in writing with the Buyer) neither the Seller they will not any of its subsidiary undertakings from time to time will either directly or indirectly and either solely or jointly with any other person (either on its own account or as the agent of any other person):) and in any capacity whatsoever for the longer of:
(a) the period of two years from Completion; and
(b) the period whilst they are employed by the Company or any member of the Buyer's Group (but not for a period in excess of 2 two years from Completion Completion), carry on or be engaged or concerned or (except as the holder of shares in a listed company which confer not more than five per cent. of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the type of business carried on by any member of the Group Company at Completion in the United Kingdom ("Competing Business").
5.2 Each of the Sellers hereby undertakes that (except as otherwise agreed in writing with the Buyer) he will not either directly or indirectly and Germanyeither solely or jointly with any other person (either on its own account or as the agent of any other person) and in any capacity whatsoever:
(a) for a period of three years from Completion solicit or accept the custom of any person in respect of goods or services competitive with those manufactured or supplied by the Company during the period of two years prior to Completion, such person having been a customer of the Company in respect of such goods or services during such period;
(b) for a period of 2 three years from Completion induce, solicit or endeavour to entice to leave the service or employment or any member of the GroupCompany, any person who during the period of 6 months one year prior to Completion was an employee of any member of the Group Company occupying a senior or managerial position and likely (in the opinion of the Buyer) to be:
(i) in possession of confidential information Confidential Information relating to; or
(ii) able to influence the customer relationships or connections of any member of the Group provided that this shall not restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iiic) for a period of two years from Completion, canvass, solicit, approach use any trade or seek out domain name or cause to be canvassed, solicited, approached or sought out or e-mail address used by any other means endeavour to entice away from member of the Company at any Group Company any person for orders or instructions in respect of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom time during the period of 12 months three years immediately prior to Completion.
8.2 Nothing in clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings from:
(a) carrying on or being engaged in or economically, interested in any business which, at preceding the date of this agreement, it currently carries on or is engaged in or economically interested in agreement or any reasonable extension other name intended or development thereof outside the United Kingdom and Germany;
(b) being the holder of shares (conferring not more than five per cent. of the votes which would normally likely to be cast at a general meeting of that company) confused with any such trade or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole domain name or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:
(i) the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquirede-mail address.
8.3 5.3 The Seller agrees Sellers agree that the undertakings contained in this clause 8 5 are reasonable and are entered into for the purpose of protecting the goodwill of the business of each member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer Company and that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for accordingly the benefit of any other person directly or indirectly represent itself to the undertakings may be connected with or interested in the business of the Group.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of assigned by the Buyer and its successors in title without the consent of any Group Company of the Sellers.
5.4 Each undertaking contained in this clause 5 is and that injunctive relief (shall be construed as separate and severable and if one or more of the undertakings is held to be against the public interest or unlawful or in addition any way an unreasonable restraint of trade or unenforceable in whole or in part for any reason the remaining undertakings or parts thereof, as appropriate, shall continue to bind the Sellers.
5.5 If any other equitable remedies) undertaking contained in this clause 5 shall be held to be void but would be valid if deleted in part or reduced in application, such undertaking shall apply with such deletion or modification as may (subject be necessary to make it valid and enforceable. Without prejudice to the discretion generality of the courtsforegoing, such period (as the same may previously have been reduced by virtue of this clause 5.5) shall take effect as if reduced by six months until the resulting period shall be obtainedvalid and enforceable.
Appears in 1 contract
Samples: Share Purchase Agreement (Cross Country Healthcare Inc)
PROTECTION OF GOODWILL. 8.1 The Seller 9.1 In consideration of the Purchaser entering into this Agreement, the Warrantor and Xxxxx Chemicals each hereby undertakes to procure agree with the Purchaser that (except as otherwise agreed in writing with the BuyerPurchaser) neither the Seller not either of them nor any of its their respective subsidiary undertakings from time to time will with any other person either directly or indirectly and either solely or and jointly with any other person or through any of their respective employees or agents (either on its own account or as the agent of any other person):
(a) 9.1.1 for a period of 2 three years from the Completion Date provide services to or be employed or otherwise carry on or be engaged or (except as the holder of shares in a listed company which confer not more than five per cent. of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes would compete with the type of business carried on by any member of the Group at Completion Business in the United Kingdom and GermanyIreland;
(b) 9.1.2 for a period of 2 three years from the Completion induceDate, solicit or endeavour to entice to leave canvass away from the service Purchaser any person, firm or employment company or any member other organisation (which was a customer or supplier of the Group, Business at any person who time during the twelve month period of 6 months prior to Completion was an employee of any member of the Group occupying a senior or managerial position and likely (in the opinion of the Buyer) to be:
(i) in possession of confidential information relating toCompletion); or
(ii) able to influence the customer relationships or connections of any member of the Group provided that this shall not restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iii) 9.1.3 for a period of two years from Completionthe Completion Date, canvass, solicit, approach solicit or seek out entice away or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to solicit or entice away from the Purchaser any Group Company senior manager, director, project manager or sales staff (excluding support staff) and any person key employee who would be treated as a “relevant employee” for orders the purposes of the Model Code contained in the Listing Rules, employed or instructions in respect of any goods or services competitive with those supplied retained by any Group Company and with whom of the Companies in relation to the Business on Completion, whether or not such person would commit any Group Company has transacted as a supplier in Germany and/or in breach of his contract of employment or terms of engagement by reason of his leaving the United Kingdom during service of the period of 12 months immediately prior Purchaser PROVIDED THAT this restriction will not apply to Completion.any advertisements for recruitment made available generally through any recruitment agency or advertisement available to the public;
8.2 9.2 Nothing in clause 8.1 9.1 shall prevent or restrict any member of the Seller or any of its subsidiary undertakings Xxxxx Group from:
(a) carrying on or being engaged in or economically, interested in any business which, at the date of this agreement, it currently carries on or is engaged in or economically interested in or any reasonable extension or development thereof outside the United Kingdom and Germany;
(b) 9.2.1 being the holder of shares (conferring up to but not more than five exceeding fifteen per cent. of the votes which would normally could be cast at a general meeting of that company) or fifteen percent of the debentures of a such company which is engaged in any business referred to in clause 8.1(a)9.1;
(c) 9.2.2 acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 9.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:
that the relevant member of Xxxxx Group shall within the following twelve months use their reasonable endeavours to sell the Competitive Operations as soon as reasonably practicable following such acquisition (iwhich shall, without limitation, include inviting the Buyer to make a competitive bid for the sale of the Competitive Operations) save that the relevant member of the Seller’s Group shall not be obliged to sell the Competitive Operations if the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking Seller’s Group has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For interest and for the purpose of this clause 8.2(c) 9.2 a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed the lower of 10 per cent. of the gross turnover of the company, group of companies or business acquired per annum or £5 million gross turnover per annum of the Company, group of companies or business acquired.
8.3 9.3 The Seller agrees Warrantor and Xxxxx Chemicals each agree with the Purchaser that neither of them will at any time after Completion, whether by itself or through any other member of the Xxxxx Group, whether directly or indirectly, in the course of carrying on its business, claim or represent any continuing association with the Purchaser in respect of the Business for the purpose of obtaining or retaining any business or custom.
9.4 The Warrantor and Xxxxx Chemicals each agree with the Purchaser that the restrictions contained in this clause 9 are considered reasonable and necessary for the protection of value of the Business (in particular the goodwill of the Business) by the parties hereto and the Warrantor and Xxxxx Chemicals acknowledge that, in the light of the total price paid under this agreement and the manner of computation thereof, the nature of the Business and all other relevant matters, the provisions of this clause 9 are considered reasonably necessary for the protection of the interests of the Purchaser, and the restrictive covenants do not go beyond what is reasonably necessary to protect the legitimate business interests of the Purchaser.
9.5 In the event that any restriction in this clause 9 shall be found to be unenforceable but would be enforceable if some part thereof were deleted or the area of operation or the period of application reduced, such restriction shall apply with such modification as may be necessary to make it legal and enforceable. Without prejudice to the generality of the foregoing, if such invalidity arises by reason of the period of restriction being excessive, such period as shall be held by a court of competent jurisdiction to be reasonable shall be able to be substituted for the period herein in order to make the restriction binding on the relevant parties.
9.6 Each undertaking contained in this clause 9 shall be construed as a separate undertaking and if one or more of the undertakings contained in this clause 8 are 9 is held to be against the public interest or unlawful or in any way an unreasonable restraint of trade the remaining undertakings shall continue to bind the Warrantor and Xxxxx Chemicals and their respective subsidiary undertakings.
9.7 The Warrantor hereby grants to the Purchaser a perpetual, royalty-free, exclusive licence to use only on the Products and their packaging, or in distributing, selling or marketing the Products, the name “Xxxxx” in the same manner as it is so used immediately prior to Completion, whether alone or in combination with any other name, provided that the Purchaser shall use all reasonable endeavours to avoid its use thereof causing any confusion between itself and are entered into for the purpose of protecting the goodwill Warrantor, its Affiliates or any of the business of each member any of them.
9.8 All Products manufactured by the Purchaser under or by reference to the Xxxxx name shall comply with the specifications and standards of quality in relation to their manufacture, materials used, workmanship and design, packaging and storage in force at the Completion Date.
9.9 Product intended to be marketed under the Xxxxx name which in the Warrantor’s reasonable opinion are not of the Group as carried out quality required by the Warrantor under clause 9.8 above shall on reasonable notice being given by the Warrantor be withdrawn from production and sale by the Purchaser and they shall either be corrected or destroyed or the Xxxxx name removed from them at Completionthe Purchasers option acting reasonably after consultation with the Warrantor. The Warrantor may on reasonable notice inspect any such corrected Products before they are marketed.
8.4 9.10 The Seller undertakes to use of the Buyer that Xxxxx name by the Purchaser shall at all times it will be in keeping with and seek to maintain its distinctiveness and reputation as reasonably determined by the Warrantor and the Purchaser shall forthwith cease any use not consistent therewith as the Warrantor may reasonably require.
9.11 Xxxxx Chemicals hereby grants the Purchaser a royalty-free, exclusive, irrevocable (save as expressly provided for in this clause) and, from six months following the Completion Date, assignable licence from the Completion Date on a fifteen-year rolling term to use the trade xxxx LOESTRIN, registered in the United Kingdom with number 2162513, and will procure that none of its subsidiary undertakings will) either itself all Xxxxx Chemical’s goodwill associated therewith, to promote, market, distribute and sell in the course of the Business those Products sold under such trade xxxx immediately prior to Completion as the same were promoted, marketed, distributed or by an agent sold, and either on its own account or by or as such trade xxxx was used, in association the course of the Business prior thereto, together with or a right for the benefit Purchaser, or its successor, to offer terms to Xxxxx Chemicals for the exclusive right to market, promote, sell or distribute any improvement to or line-extension of any such Products in the European Union for Xxxxx Chemicals in advance of any other person directly and accepts a prohibition on Xxxxx Chemicals from accepting from, or indirectly represent itself offering to, any other person terms to undertake such marketing, promotion, sale or distribution which are equivalent to, or less favourable to Xxxxx Chemicals than any so offered by the Purchaser or its successor, provided that those offered by the Purchaser or its successor are commercially reasonable, provided that:
(a) whenever so used, such trade xxxx is accompanied by wording showing that it is the registered trade xxxx of Xxxxx Chemicals used with permission other than where used following Completion on packaging material for the Products in existence at Completion;
(b) such use is in keeping with, and seeks to maintain the distinctiveness and reputation of such trade xxxx;
(c) all goodwill generated by such use shall vest, and upon request and at Xxxxx Chemicals’ cost shall be assigned by the Purchaser to, Xxxxx Chemicals;
(d) all such Products so distributed or sold comply in all material respects with the specifications and standards of quality in respect thereto in force at the Completion Date or reasonably specified by Xxxxx Chemicals thereafter; and
(e) in the event that any Products so marketed, promoted, distributed or sold do not comply in all material respects with the specifications or standards referred to in (d) above, the Purchaser shall, upon reasonable notice from Xxxxx Chemicals, withdraw such products from promotion, marketing distribution or sale, as applicable, and either correct or destroy the same or have such trade xxxx removed from them and all their packaging and product inserts: and provided further that this licence and the other rights and benefits of the Purchaser set out above shall be terminable by Xxxxx Chemicals only:
(i) upon written notice to the Purchaser if the Purchaser materially breaches any of the provisions of (a) to (e) above, provided that if the material breach is capable of remedy, such notice shall only be given if the Purchaser has not remedied the same within four weeks (or such longer period as Xxxxx Chemicals may agree) of having been given notice in writing specifying the breach and requiring it to be connected remedied; or
(ii) upon the Purchaser becoming unable to pay its debts as they fall due, entering into compulsory or voluntary liquidation (other than for the purposes of effecting a reconstruction or amalgamation in such manner that the company resulting from such reconstruction or amalgamation, if a different legal entity, shall agree to be bound by and assume the obligations of the Purchaser under this clause), compounds with or interested contravenes a meeting of its creditors, has a receiver or manager or an administrator appointed of its assets or ceases for any reason to carry on business.
9.12 Xxxxx Chemicals and the Purchaser shall use all reasonable endeavours to agree and enter into, as soon as reasonably practicable, a royalty-free, exclusive, assignable, and, subject to termination for material breach or insolvency or the like, (i) irrevocable and (ii) fifteen-year rolling, licence of the trade xxxx LOESTRIN, registered in the business United Kingdom with number 2162513, to promote, market, distribute and sell those Products sold under such trade xxxx immediately prior to Completion. Such licence shall be on reasonable commercial terms having regard, inter alia, to the terms of other licences of the Group.
8.5 trade xxxx LOESTRIN granted by Xxxxx Chemicals prior hereto but also having regard to differences (if any) between the marketing, sale, promotion and distribution of products under the LOESTRIN trade xxxx in other territories where Xxxxx Chemicals has granted such licences and such marketing, sales, promotional and distribution activities by Xxxxx Chemicals in the UK and Ireland at the date of this agreement. Such licence shall also include a right for the Purchaser, or its successor, to offer terms to Xxxxx Chemicals for the exclusive right to market, sell, promote and distribute any improvement or line-extension to any such Products in the European Union for Xxxxx Chemicals in advance of any other person, and a prohibition on Xxxxx Chemicals from accepting from, or offering to, any other person terms to undertake such marketing, sale, promotion or distribution which are equivalent to, or less favourable to Xxxxx Chemicals than, any so offered by the Purchaser or its successor, provided that those offered by the Purchaser or its successor are commercially reasonable. If a breach licence to market, sell, promote and distribute Products under the LOESTRIN name is granted to the Purchaser under the terms of clauses 8.1, 8.2 or 8.3 occursthis clause 9.12, the Seller licence and other benefits granted to the Buyer agree Purchaser under clause 9.11 above shall be revoked immediately. Subject to the parties’ obligations in clause 9.12 to use all reasonable endeavours to enter into a royalty free, exclusive, assignable licence as therein provided, in the event that damages alone are likely not no licence of the type referred to in clause 9.12 is entered into by the end of the period of six months beginning on the Completion Date, Xxxxx Chemicals shall be entitled to revoke the Purchaser’s right pursuant to clause 9.11 to offer terms to Xxxxx Chemicals for the exclusive right to market sell, promote or distribute any improvement or line-extension to the Products referred to therein in advance of any other person and to be sufficient compensation and released from the prohibition on Xxxxx Chemicals contained in that injunctive relief is reasonable and is likely to be essential to safeguard the interests of the Buyer and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion of the courts) be obtainedclause.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase (Warner Chilcott CORP)
PROTECTION OF GOODWILL. 8.1 Restrictions on the Transferor
12.1 The Seller hereby Transferor undertakes to the Transferee (for itself and on behalf of each of the Target and the Target Subsidiaries) that he shall not, directly or indirectly (and shall procure that (except as otherwise agreed in writing with the Buyerno Affiliate of him shall directly or indirectly) neither the Seller not do any of its subsidiary undertakings from time to time will either solely the following in any capacity, whether on his own behalf, or on behalf of, or jointly with with, any other person (either on its own account or as the agent of any other person):
(a) for a period of 2 years from Completion carry on or be engaged or (except as the holder of shares in a listed company which confer not more than five per cent. furtherance of the votes which can generally be cast at a general meeting of Target’s Business or the company) interested directly or indirectly in a business which competes with the type of business carried on by any member of the Group at Completion in the United Kingdom and Germany;
(b) for a period of 2 years from Completion induce, solicit or endeavour to entice to leave the service or employment or any member of the Group, any person who during the period of 6 months Transferee’s prior to Completion was an employee of any member of the Group occupying a senior or managerial position and likely (in the opinion of the Buyer) to be:
(i) in possession of confidential information relating to; or
(ii) able to influence the customer relationships or connections of any member of the Group provided that this shall not restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iii) for a period of two years from Completion, canvass, solicit, approach or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company any person for orders or instructions in respect of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom during the period of 12 months immediately prior to Completion.
8.2 Nothing in clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings fromwritten consent:
(a) carrying on or being engaged in or economicallyat any time during the period of three years from Closing, interested in any business which, at geographic area in which the date Target or any of this agreement, it currently the Target Subsidiaries carries on business at Closing, carry on, be concerned or assist in any way, a business which is engaged or would be in or economically interested in or any reasonable extension or development thereof outside competition with the United Kingdom and Germany;Business as it was carried on at Closing; or
(b) being at any time during the holder period of shares (conferring not more than five per cent. three years from Closing, canvass, solicit or otherwise seek or accept the custom of any person who has been a client or customer of the votes which would normally be cast Target or any of the Target Subsidiaries at a general meeting any time during the period of that company) or debentures of a company which is engaged in any business referred twelve months prior to in clause 8.1(a)Closing;
(c) acquiring at any time during the whole period of three years from Closing employ or engage, or offer to employ or engage, or solicit or otherwise entice or attempt to entice away from the Target or any part of the Target Subsidiaries, any person who is employed or engaged by the Target or any of the Target Subsidiaries in a managerial, sales or technical role; or
(d) at any time after Closing, use in the course of any business any trade or service xxxx, business or domain name, design or logo which, at Closing, was or had been used by the share capital of a company Target or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach any of the undertaking contained Target Subsidiaries, or anything which is, in clause 8.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:
(i) the Competitive Operations comprise a minor part reasonable opinion of the business Transferee, capable of confusion with such words, xxxx, name, design or the business of such company, group of companies or businesses acquired or logo.
12.2 Each undertaking in which the Seller or its relevant subsidiary Section 12.1 is a separate undertaking has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside Transferor and shall be enforceable separately and independently by the Transferee and each of the Seller’s Group within one year Target and the Target Subsidiaries. Each such undertaking is considered fair and reasonable by the parties in order to assure the Transferee the full benefit of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquired.
8.3 The Seller agrees that the undertakings contained in this clause 8 are reasonable Business and are entered into for the purpose of protecting the goodwill of the business Target and the Target Subsidiaries.
12.3 Notwithstanding anything else in this Agreement to the contrary, the ownership of each member capital stock of Transferee or not more than 3% of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit capital stock of any other person directly company listed on any U.S. stock exchange, including the NASDAQ markets, by Transferor or indirectly represent any Affiliate of Transferor shall not in and of itself be deemed to be connected with or interested in the business of the Group.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of the Buyer and violation of any Group Company and that injunctive relief (covenant set forth in addition to any other equitable remedies) may (subject to the discretion of the courts) be obtainedSection 12.1.
Appears in 1 contract
PROTECTION OF GOODWILL. 8.1 The Seller hereby 7.1 Each of the Sellers and the CPG Guarantor undertakes to procure that (except as otherwise agreed in writing with the Buyer) neither the Seller not any of its subsidiary undertakings from time to time will either solely or jointly with any other person (either on its own account or as the agent of any other person):
(a) for a period of 2 years from Completion carry on or be engaged or (except as the holder of shares in a listed company which confer not more than five per cent. of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the type of business carried on by any member of the Group at Completion in the United Kingdom Buyer and Germany;
(b) for a period of 2 years from Completion induce, solicit or endeavour to entice to leave the service or employment or any member of the Group, any person who during the period of 6 months prior to Completion was an employee of any member of the Group occupying a senior or managerial position and likely (in the opinion of the Buyer) to be:
(i) in possession of confidential information relating to; or
(ii) able to influence the customer relationships or connections of any member of the Group provided that this shall not restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iii) for a period of two years from Completion, canvass, solicit, approach or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company any person for orders or instructions in respect of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom during the period of 12 months immediately prior to Completion.
8.2 Nothing in clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings from:
(a) carrying on or being engaged in or economically, interested in any business which, at the date of this agreement, it currently carries on or is engaged in or economically interested in or any reasonable extension or development thereof outside the United Kingdom and Germany;
(b) being the holder of shares (conferring not more than five per cent. of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:
(i) the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquired.
8.3 The Seller agrees that the undertakings contained in this clause 8 are reasonable and are entered into for the purpose of protecting the goodwill of the business of each member of the NVAX Group as carried out at Completion.
8.4 The Seller undertakes to that save with the Buyer that at all times prior written consent of the Buyer, it will not (and will procure that none of its subsidiary undertakings their respective Affiliates will) either itself or by an agent and either on its own account or by or in association with or for the benefit of any other person , directly or indirectly represent itself during the Restricted Period:
7.1.1 solicit the services of, endeavour to be connected entice away from the Company or employ (or see to solicit the services of, endeavour to entice away from the Company or employ) any officer, director, senior or managerial employee, consultant, service provider or supplier of the Company (whether or not such person would commit any breach of his contract of employment or engagement by reason of leaving the service of the Company);
7.1.2 solicit business from any customer or client of the Company for the purpose of providing that customer or client with products and/or services which are the same as or interested similar to any product and/or services which is was involved in providing to that customer or client at any time in the 12 month preceding the date of this Deed;
7.1.3 interfere or seek to interfere with contractual or other trade relations between the Company and any of its customers, clients and/or suppliers; or
7.1.4 do or say anything which is harmful to the Company’s goodwill as subsisting at the date of this Deed at any time to any person who has dealt with the Company at any time during the 12 months prior to the date of this Deed.
7.2 Notwithstanding the provisions of Clause 7.1, the Buyer agrees and acknowledges that the Sellers and other members of the Seller’s Group are engaged in the business of the Group manufacture of vaccines and the Sellers and the other members of the Sellers’ Group shall not be prohibited from soliciting the services of, or otherwise contracting with, any suppliers, service providers and/or consultants who supply and/or provide services (as the case may be) to the Sellers’ Group in the ordinary course of the business of the Sellers’ Group without detriment to the Company.
8.5 If a breach 7.3 Each of clauses 8.1, 8.2 or 8.3 occurs, the Seller Sellers and CPG Guarantor agrees (having taken independent legal advice) that the Buyer agree that damages alone undertakings contained in Clause 7.1 are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard necessary for the protection of the legitimate interests of the Buyer and the NVAX Group and that these restrictions do not work harshly on it.
7.4 Each of any Group the undertakings contained in Clause 7.1 is a separate undertaking by each of the Sellers and the CPG Guarantor and shall be enforceable by the Buyer (on its own behalf and on behalf of the Company and that injunctive relief (any other member of the NVAX Group) separately and independently of its right to enforce any one or more of the other covenants contained in addition Clause 7.1 and if one or more of the undertakings is held to be against the public interest or unlawful or in any way an unreasonable restraint of trade, the remaining undertakings shall continue to bind each Seller and the CPG Guarantor.
7.5 Each of the Buyer, the Sellers and the CPG Guarantor further agree that, without prejudice to any other equitable remedies) remedy which may (subject be available to the discretion Buyer, the Buyer shall be entitled to seek injunctive or other equitable relief in relation to any breach or prospective breach of the courts) undertakings in Clause 7.1, it being acknowledged that an award of damages may not be obtainedan adequate remedy for such a breach.
Appears in 1 contract
PROTECTION OF GOODWILL. 8.1 The Seller 11.1 Each of the Sellers hereby undertakes to procure the Buyer and the Company that (except as otherwise agreed in writing with by the Buyer) neither the Seller he or she will not any of its subsidiary undertakings from time to time will either solely or jointly with any other person (either on its his or her own account or as the agent of any other person):
(a) for a period of 2 three (3) years from Completion carry on or be engaged or concerned or (except as the holder of shares in a listed company which confer not more than five per cent. 1% of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the type of business carried on by any member Business.
11.2 Without prejudice to clause 11.1, each of the Group at Completion Sellers hereby undertakes to the Buyer and the Company that (except as otherwise agreed in writing with the United Kingdom and Germany;Buyer) he or she will not either solely or jointly with any other person (either on his own account or as agent of any other person):
(b) 11.2.1 for a period of 2 three (3) years from Completion induce, employ or solicit or endeavour to entice to leave the service or employment or any member custom of the Group, any person who during the period of 6 months prior to Completion was an employee of any member of the Group occupying a senior or managerial position and likely (in the opinion of the Buyer) to be:
(i) in possession of confidential information relating to; or
(ii) able to influence the customer relationships or connections of any member of the Group provided that this shall not restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iii) for a period of two years from Completion, canvass, solicit, approach or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company any person for orders or instructions in respect of any goods or services competitive with those supplied by the Business, such person having been a customer of the Company in respect of such goods or services during such period;
11.2.2 for a period of three (3) years from Completion, have any Group Company and with whom business dealings with, solicit, entice or attempt to entice away any Group Company person who is at Completion, or has transacted as a supplier in Germany and/or in the United Kingdom been at any time during the period of 12 months immediately prior to Completion., a supplier of goods or services to the Company, if such dealings, solicitation or enticement causes or is reasonably likely to cause such supplier to cease supplying, or reduce its supply of goods or services to the Company, or to vary adversely the terms upon which it conducts business with the Company;
8.2 Nothing in clause 8.1 shall prevent 11.2.3 use any trade or restrict domain name or e-mail address used by the Seller or Company at any of its subsidiary undertakings from:
(a) carrying on or being engaged in or economically, interested in any business which, at time during the 3 years immediately preceding the date of this agreement, it currently carries on or is engaged in or economically interested in Agreement or any reasonable extension other name intended or development thereof outside likely to be confused with any such trade or domain name or e-mail address; or
11.2.4 access or attempt to access the United Kingdom and Germany;
(b) being main login account of any Amazon seller central account owned by the holder of shares (conferring not more than five per cent. Company using any computer, mobile phone or other device that has been used to access the main login of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a);Seller Central Account.
(c) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach 11.3 Each of the undertaking contained in clause 8.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:
(i) the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquired.
8.3 The Seller Sellers agrees that the undertakings contained in this clause 8 11 are reasonable and are entered into for the purpose of protecting the goodwill of the business Business and that accordingly the benefit of the undertakings may be assigned by the Buyer and its successors in title without the consent of the Sellers or any of them.
11.4 Each undertaking contained in this clause 11 is and shall be construed as separate and severable and if one or more of the undertakings is held to be against the public interest or unlawful or in any way an unreasonable restraint of trade or unenforceable in whole or in part for any reason the remaining undertakings or parts thereof, as appropriate, shall continue to bind each of the Sellers.
11.5 If any undertaking contained in this clause 11 shall be void but would be valid if deleted in part or reduced in application, such undertaking shall apply with such deletion or modification as may be necessary to make it valid and enforceable. Without prejudice to the generality of the foregoing, such period (as the same may previously have been reduced by virtue of this clause 11.5) shall take effect as if reduced by 6 months until the resulting period shall be valid and enforceable.
11.6 No Seller shall at any time disparage the Company or the Business, any member of the Group as carried out at Completion.
8.4 The Seller undertakes to Buyer’s Group, any of their respective businesses, any of their respective officers, managers, members, partners, shareholders, directors or employees, or the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit reputation of any other person directly or indirectly represent itself to be connected with or interested in the business of the Groupsuch persons.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of the Buyer and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion of the courts) be obtained.
Appears in 1 contract
PROTECTION OF GOODWILL. 8.1 The Seller hereby 14.1 In order to assure to the Purchaser the full benefit of the business and goodwill of the Group, each Warrantor and Xxxxx Xxxxxx undertakes to procure on his own behalf that (except save as otherwise agreed may be bona fide in writing with the Buyerfulfilling his duties as an employee of a Purchaser Group Company thereafter) neither the Seller he shall not any of its subsidiary undertakings from time to time will either solely directly or jointly with any other person indirectly (either whether as principal, shareholder, partner, employee, agent or otherwise), whether on its his own account or as the agent in conjunction with or on behalf of any other person):, do any of the following things:
(a) for a period of 2 years from Completion during the Restricted Period carry on or be engaged engaged, concerned or interested in (except as the holder of shares in a company whose shares are listed company on a recognised investment exchange or overseas investment exchange (as such terms are defined in Sections 285 and 313, Financial Services and Markets Act 2000) which confer not more than five per cent. 1% of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the type of business carried on by any member of the Group at Completion in the United Kingdom and Germany;
(b) for a period of 2 years from Completion induce, solicit or endeavour to entice to leave the service or employment or any member of the Group, any person who during the period of 6 months prior to Completion was an employee of any member of the Group occupying a senior or managerial position and likely (in the opinion of the Buyer) to be:
(i) in possession of confidential information relating to; or
(ii) able to influence the customer relationships or connections of any member of the Group provided that this shall not restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iii) for a period of two years from Completion, canvass, solicit, approach or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company any person for orders or instructions in respect of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom during the period of 12 months immediately prior to Completion.
8.2 Nothing in clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings from:
(a) carrying on or being engaged in or economically, interested in any business which, at the date of this agreement, it currently carries on or is engaged in or economically interested in or any reasonable extension or development thereof outside the United Kingdom and Germany;
(b) being the holder of shares (conferring not more than five per cent. of the votes which would could normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:
(i) which competes with the Competitive Operations comprise a minor part of Restricted Business within the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interestTerritory; andor
(ii) which does not compete with the Seller Restricted Business but with the intention that the Warrantor will help such business to develop female surgical contraception, tubal ligation devices, suprapubic catheterisation or its relevant subsidiary undertaking disposes basic laser fibre technology for kidney stone treatment; or
(b) during the Restricted Period canvass or solicit or seek to entice away the custom of any Client or Prospective Client for the purposes of providing Restricted Business within the Territory; or
(c) during the Restricted Period accept orders for the provision of Restricted Business within the Territory in respect of any Client or Prospective Client; or
(d) during the Restricted Period endeavour to entice away from any Group Company or encourage to terminate his employment with any Group Company (whether or not such termination would be a breach of his contract of employment) any Senior Employee; or
(e) subject to paragraph 14.2 below during the Restricted Period employ or otherwise engage any Senior Employee; or
(f) save as required by law, during the Restricted Period do or say anything likely or calculated to lead any person to withdraw from or cease to continue offering to any Group Company any rights (whether of purchase, sale, import, distribution, agency or otherwise) then enjoyed by it or in any other way to cease to do business or reduce the amount of business it transacts with any Group Company; or
(g) save in the circumstances referred to in sub clause 15.10 (Confidentiality), disclose to any other person any information which is secret or confidential to the business or affairs of the Competitive Operations Group or any Purchaser Group Company or use any such information to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” detriment of the business of such companythe Group or any Purchaser Group Company for so long as that information remains secret or confidential; or
(h) in relation to a business which is competitive or is likely to be competitive with the Restricted Business, group of companies use any trade or business name or distinctive xxxx, style or logo used by or in the business of any Group Company at Completion or anything intended or likely to be confused with it.
14.2 Nothing in paragraph 14.1 above shall be part of its overall prevent any Warrantor from:
(a) considering or accepting an application for employment from a Senior Employee in response to a recruitment advertisement published generally and not specifically directed at any Senior Employee nor responding to an approach by such a Senior Employee which a Warrantor can establish from their records as having been initiated by such Senior Employee without any encouragement or other solicitation from the Warrantor; and/or
(b) being employed or engaged by a company or business in which the turnover of the Competitive Operations that does not exceed 10 per cent. of compete with the gross turnover of Restricted Business but which employs or otherwise engages a Senior Employee and a Warrantor can establish from their records that such employment or engagement was prior to the Warrantor's involvement with such business or company, group of companies or business acquired.
8.3 The Seller agrees that the undertakings 14.3 Each undertaking contained in this clause 8 14 (Protection of goodwill) shall be construed as a separate and independent undertaking and, while the restrictions set out in this clause are considered by the parties to be reasonable in all the circumstances, it is agreed that if any one or more of such restrictions shall, either taken by itself or themselves together, be adjudged to go beyond what is reasonable in all the circumstances for the protection of the Purchaser's legitimate interests but would be adjudged reasonable if any particular restriction or restrictions were deleted or any part or parts of the wording thereof were deleted, restricted or limited in any particular manner (including without limitation any reduction in their duration or geographical scope) then the said restrictions shall apply with such deletions, restrictions or limitation as the case may be.
14.4 Each of the Warrantors and Xxxxx Xxxxxx agrees that, having regard to the facts and matters set out above and having taken professional advice, the restrictions contained in this clause 14 (Protection of goodwill) are reasonable and are entered into necessary for the purpose of protecting the goodwill protection of the legitimate business of each member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit of any other person directly or indirectly represent itself to be connected with or interested in the business of the Group.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of the Buyer and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion of the courts) be obtainedXxxxxxxxx.
Appears in 1 contract
Samples: Share Purchase Agreement (Utah Medical Products Inc)
PROTECTION OF GOODWILL. 8.1 The Seller hereby undertakes to procure 10.1 Each of the Sellers undertake with the Buyer (for itself and as trustee for each Group Company) that (except as otherwise agreed without the prior consent in writing with the Buyer) neither the Seller not any of its subsidiary undertakings from time to time will either solely or jointly with any other person (either on its own account or as the agent of any other person):
(a) for a period of 2 years from Completion carry on or be engaged or (except as the holder of shares in a listed company which confer not more than five per cent. of the votes which can generally Buyer (such consent not to be cast at a general meeting of the companyunreasonably withheld) interested he shall not directly or indirectly indirectly, in a business which competes with the type of business carried on by any member of the Group at Completion in the United Kingdom and Germany;
(b) for a period of 2 years from Completion induce, solicit or endeavour to entice to leave the service or employment or any member of the Group, any person who during the period of 6 months prior to Completion was capacity other than as an employee of any member of the Group occupying a senior Company, either by himself or managerial position in conjunction with any other persons or through his employees or agents or otherwise, and likely (in the opinion of the Buyer) to be:
(i) in possession of confidential information relating to; or
(ii) able to influence the customer relationships whether on his own behalf or connections on behalf of any member of the Group provided that this shall not restrict any member of the Seller’s Group from advertising other person or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iii) howsoever, for a period of two years from Completion, canvass, solicit, approach or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company any person for orders or instructions in respect of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom during the period of 12 months immediately prior to Completion.
8.2 Nothing in clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings fromCompletion Date:
(a) carrying on carry on, be employed or being engaged in otherwise engaged, concerned or economically, interested in any capacity (whether for reward or otherwise) in, or provide any technical, commercial or professional advice to, or in any way assist any business which, at the date of this agreement, it currently carries on which is or is about to be engaged in the development, manufacture, production, distribution or economically interested in sale of the Products or any reasonable extension of them or development thereof outside the United Kingdom and Germanysupply of the Services or any of them in the Area of Operation in competition with the business of the Company or any other Group Company as carried on at Completion;
(b) being the holder of shares (conferring not more than five per cent. in competition with any Group Company solicit business from or canvass any Customer or Prospective Customer if such solicitation or canvassing is in respect of the votes which would normally be cast at a general meeting of that company) Products or debentures of a company which is engaged in any business referred to in clause 8.1(a)the Services;
(c) acquiring the whole in competition with any Group Company, accept orders for Products or Services from any part of a business which, Customer or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:Prospective Customer;
(id) solicit or induce or attempt to solicit or induce any person who on the Competitive Operations comprise Completion Date was a minor part of the business director, manager, salesman or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquired.
8.3 The Seller agrees that the undertakings contained in this clause 8 are reasonable and are entered into for the purpose of protecting the goodwill of the business of each member Senior Employee of the Group as carried out at Completionto cease working for or providing services to the Group whether or not any such person would thereby commit any breach of contract except for those who answer an advertisement in relation to a post available to members of the public generally;
(e) employ or otherwise engage any person who on the Completion Date was a director, manager, salesman or Senior Employee of the Group except for those who answer an advertisement in relation to a post available to members of the public generally.
8.4 The Seller undertakes to 10.2 In this clause the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for following expressions have the benefit of any other person directly or indirectly represent itself to be connected with or interested in the business of the Group.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of the Buyer and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion of the courts) be obtained.following meanings:
Appears in 1 contract
Samples: Sale and Purchase Agreement (Seachange International Inc)
PROTECTION OF GOODWILL. 8.1 The Seller 5.1 Each of Xxxxxx and Xxxxxx hereby respectively undertakes to procure that (except as otherwise agreed in writing with the BuyerPurchaser) neither the Seller he will not any of its subsidiary undertakings from time to time will either solely or jointly with any other person (either on its their own account respective accounts or as the agent of any other person):person):-
(a) for a period of 2 years the Relevant Period from Completion carry on or be engaged or concerned or (except as the holder of shares in a listed company which confer not more than five per cent. of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes in the United Kingdom with the type of business carried on by any member of the Group at Completion in the United Kingdom and GermanyKingdom;
(b) for the Relevant Period from Completion solicit or accept the custom of any person in respect of goods or services competitive with those manufactured or supplied by any member of the Group prior to Completion, such person having been a period customer of 2 years the Company in respect of such goods or services during such period;
(c) for the Relevant Period from Completion induce, solicit or endeavour to entice to leave the service or employment or any member of the Group, any person who during the period of 6 12 months prior to Completion was an employee of any member of the Group occupying a senior or managerial position and or any position involving data management or sales likely (in the opinion of the BuyerPurchaser) to be:be:-
(i) in possession of confidential information Confidential Information relating to; or
(ii) able to influence the customer relationships or connections of; or
(iii) otherwise crucial to the operation of the business of any member of the Group provided that this shall not restrict to leave the service or employment of any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group CompanyGroup; or
(iiid) for a period of two years from Completion, canvass, solicit, approach or seek out or cause to be canvassed, solicited, approached or sought out or use any trade name (including the expression "Olwen") used by any other means endeavour to entice away from member of the Group at any Group Company any person for orders or instructions in respect of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom time during the period of 12 months three years immediately prior to Completion.
8.2 Nothing in clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings from:
(a) carrying on or being engaged in or economically, interested in any business which, at preceding the date of this agreement, it currently carries on or is engaged in or economically interested in agreement or any reasonable extension other name intended or development thereof outside the United Kingdom and Germany;
(b) being the holder of shares (conferring not more than five per cent. of the votes which would normally likely to be cast at a general meeting of that company) or debentures of a company which is engaged in confused with any business referred to in clause 8.1(a);
(c) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:
(i) the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquiredtrade name.
8.3 The Seller 5.2 Each of Xxxxxx and Xxxxxx agrees that the undertakings contained in this clause 8 5 are reasonable and are entered into for the purpose of protecting the goodwill of the business of each member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer and that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for accordingly the benefit of any other person directly the undertakings may be assigned by the Purchaser and its successors in title without the consent of Xxxxxx or indirectly represent itself Xxxxxx.
5.3 Each undertaking contained in this clause 5 is and shall be construed as separate and severable and if one or more of the undertakings is held to be connected against the public interest or unlawful or in any way an unreasonable restraint of trade or unenforceable in whole or in part for any reason the remaining undertakings or parts thereof, as appropriate, shall continue to bind Xxxxxx and Xxxxxx.
5.4 If any undertaking contained in this clause 5 shall be held to be void but would be valid if deleted in part or reduced in application, such undertaking shall apply with such deletion or interested in modification as may be necessary to make it valid and enforceable. Without prejudice to the business generality of the Groupforegoing, a period (as the same may previously have been reduced by virtue of this clause 5.4) shall take effect as if reduced by six months until the resulting period shall be valid and enforceable.
8.5 If a breach 5.5 The references in this clause 5 to the Relevant Period means 3 years in respect of clauses 8.1Xxxxxx and 2 years in respect of Xxxxxx.
5.6 In the event that Xxxxxx is wrongfully dismissed from his employment with the Company, 8.2 he shall no longer be bound by clause 5.1(a), (b) or 8.3 occurs(c).
5.7 No provision of this agreement, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief by virtue of which this agreement is reasonable and is likely to be essential to safeguard the interests of the Buyer and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to registration (if such be the discretion case) under the Restrictive Trade Practices Act 1976 (unless this agreement is a non-notifiable agreement pursuant to section 27A of that Act), shall take effect until the courts) be obtainedday after particulars of this agreement have been furnished to the Director-General of Fair Trading pursuant to section 24 of that Act. For this purpose the expression "this agreement" includes any agreement or arrangement of which this agreement forms part and which is registrable or by virtue of which this agreement is registrable.
Appears in 1 contract
Samples: Share Purchase Agreement (Big Flower Press Holdings Inc)
PROTECTION OF GOODWILL. 8.1 The Seller hereby undertakes to procure that (except as otherwise agreed in writing with 6.1 For the Buyer) neither purpose of this Clause 6, the Seller not any of its subsidiary undertakings from time to time will either solely or jointly with any other person (either on its own account or as following terms shall have the agent of any other person):
(a) for a period of 2 years from Completion carry on or be engaged or (except as the holder of shares in a listed company which confer not more than five per cent. of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the type of business carried on by any member of the Group at Completion in the United Kingdom and Germany;
(b) for a period of 2 years from Completion induce, solicit or endeavour to entice to leave the service or employment or any member of the Group, any person who during the period of 6 months prior to Completion was an employee of any member of the Group occupying a senior or managerial position and likely (in the opinion of the Buyer) to befollowing meanings:
(i) in possession of confidential information relating to; or
(ii) able to influence the customer relationships or connections of any member of the Group provided that this 6.1.1 Relevant Period shall not restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iii) for a period of two years from Completion, canvass, solicit, approach or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company any person for orders or instructions in respect of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom during mean the period of 12 months immediately prior to Completion.
8.2 Nothing in clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings from:
(a) carrying on or being engaged in or economically, interested in any business which, at the date of execution of this agreement, it currently carries on or is engaged in or economically interested in or any reasonable extension or development thereof outside the United Kingdom and Germany;Agreement.
(b) being the holder of shares (conferring not more than five per cent. of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:
(i) the Competitive Operations comprise a minor part of the business or 6.1.2 Restricted Business shall mean the business of such companyproviding international low cost telecommunication (including, group but not limited to calls from land lines, calls from mobile phones, conference facilities and the provision of companies or businesses acquired or in which a fax carrier service) for residential and/or business customers.
6.1.3 Restricted Territories shall mean any territory that the Seller or its relevant subsidiary undertaking has acquired an interest; and
(ii) conducted Restricted Business for the Seller or its relevant subsidiary undertaking disposes of Company during the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquiredRelevant Period.
8.3 The Seller agrees that the undertakings contained in this clause 8 are reasonable and are entered into for the purpose of protecting the goodwill of the business of each member of the Group as carried out at Completion.
8.4 6.2 The Seller undertakes to the Buyer that at all times it without the written consent of the Buyer:-
6.2.1 for a period of 3 years from Completion he will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit of any other person capacity whatsoever directly or indirectly represent itself to carry on or assist in carrying on or be connected with engaged, concerned or interested in any activity or undertaking which is the same as, substantially similar to, or competes directly or indirectly with the business of the Group.Company within the Restricted Territories in relation to the Restricted Business; and
8.5 If 6.2.2 for a period of 3 years from Completion he will not for the purpose of any business supplying services competing with the Restricted Business canvass, solicit or endeavour to entice away from the Company any person who during the Relevant Period has been a customer of the Company or has employed its services or who has been canvassed by the Company (otherwise than by general advertising) with a view to becoming a customer of the Company; and
6.2.3 for a period of 3 years from Completion he will not canvass, solicit or endeavour to entice away from the Company, employ or offer employment to, or employ or engage any employee, who is a member of the Management Team and who is employed at the date of this Agreement and/or at Completion nor do any act or thing likely to have the effect of causing any such employee to terminate his employment with the Company whether or not such employee would thereby breach his contract of clauses 8.1, 8.2 employment; and
6.2.4 he will not at any time in connection with any business carried on by him or 8.3 occurs, otherwise howsoever use directly or indirectly or authorise any person to use directly or indirectly any of the Seller and Intellectual Property Rights including any of the Buyer agree that damages alone are names or words "AURACALL" or any names or words similar to or likely not to be sufficient compensation and that injunctive relief is reasonable and confused with them or use any distinctive xxxx, style or logo used by the Company or any xxxx, style or logo similar to or likely to be confused with them in any manner which is likely to be essential to safeguard or may result in confusion between or other association with the interests business, goods, services or other activities of the Buyer and Company including by using the name "AURACALL" as part of a corporate name, trade name or otherwise.
6.3 Nothing in Clause 6 shall prevent the Seller from owning not more than 3% of any Group class of the issued share capital of a company which is dealt in on a recognised investment exchange (as defined in the Financial Services and Markets Act 2000), provided that nothing in this sub-clause shall apply to any shares held by the Seller in Xfone.
6.4 The Seller has taken independent legal advice and acknowledges that he considers the undertakings contained in Clause 6 reasonable and necessary for the proper protection of the business of the Company and further acknowledges that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion damages would not be an adequate remedy for breach of such undertakings.
6.5 Each of the courts) undertakings contained in Clause 6 is separate and severable and shall be obtainedconstrued on that basis. In the event that any of such undertakings is found to be void but would be valid if some part of it were deleted or if the period or extent of it were reduced such undertaking shall apply with such modification as may be necessary to make it valid and effective.
Appears in 1 contract
Samples: Share Purchase Agreement (Xfone Inc)
PROTECTION OF GOODWILL. 8.1 The Seller hereby undertakes to procure that (except as otherwise agreed in writing with the Buyer) neither no member of the Seller not any of its subsidiary undertakings from time to time Seller’s Group will either directly or indirectly and either solely or jointly with any other person (either on its own account or as the agent of any other person):) and in any capacity whatsoever:
(a) for a period of 2 3 years from Completion carry on or be engaged or concerned or (except as the holder of shares in a listed company which confer not more than five per cent. of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the type of business carried on by any member of the Group at Completion in the United Kingdom and US, the UK, Hong Kong, Singapore, Australia, Germany, France, Bermuda, Canada, or Japan;
(b) for a period of 2 3 years from Completion solicit or accept the custom of any person in respect of goods or services competitive with those supplied by any member of the Group during the period of 12 months prior to Completion, such person having been a customer of the Company in respect of such goods or services during such period;
(c) for a period of 3 years from Completion induce, solicit or endeavour to entice to leave the service or employment or of any member of the Group, any person who during the period of 6 12 months prior to Completion was an employee of any member of the Group occupying a senior or managerial position and likely (in the opinion of the Buyer) to be:
(i) in possession of confidential information relating to; or
(ii) able to influence the customer relationships or connections of any member of the Group provided that this shall not restrict Group; or
(d) use any trade or domain name (including the expression “Gains” or any colourable imitation thereof) or e-mail address used by any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) at any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iii) for a period of two years from Completion, canvass, solicit, approach or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company any person for orders or instructions in respect of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom time during the period of 12 months 3 years immediately prior to Completion.
8.2 Nothing in clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings from:
(a) carrying on or being engaged in or economically, interested in any business which, at preceding the date of this agreement, it currently carries on or is engaged in or economically interested in agreement or any reasonable extension other name intended or development thereof outside the United Kingdom and Germany;
(b) being the holder of shares (conferring not more than five per cent. of the votes which would normally likely to be cast at a general meeting of that company) confused with any such trade or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole domain name or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:
(i) the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquirede-mail address.
8.3 8.2 The Seller agrees that the undertakings contained in this clause 8 are reasonable and are entered into for the purpose of protecting the goodwill of the business of each member of the Group and that accordingly the benefit of the undertakings may be assigned by the Buyer and its successors in title without the consent of the Seller.
8.3 Each undertaking contained in this clause 8 is and shall be construed as carried out at Completionseparate and severable and if one or more of the undertakings is held to be against the public interest or unlawful or in any way an unreasonable restraint of trade or unenforceable in whole or in part for any reason the remaining undertakings or parts thereof, as appropriate, shall continue to bind the Seller.
8.4 The Seller undertakes If any undertaking contained in this clause 8 shall be held to be void but would be valid if deleted in part or reduced in application, such undertaking shall apply with such deletion or modification as may be necessary to make it valid and enforceable. Without prejudice to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit of any other person directly or indirectly represent itself to be connected with or interested in the business generality of the Groupforegoing, such period (as the same may previously have been reduced by virtue of this clause 8.4) shall take effect as if reduced by six months until the resulting period shall be valid and enforceable.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Buyer gives the Seller and the Buyer agree that damages alone are likely not notice pursuant to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests clause 9.3 of the Buyer and Tullett Supplier Agreement of any Group Company and that injunctive relief (in addition its intention to any other equitable remedies) may (subject cease to procure the discretion provision of services, pursuant to such agreement, by reason of substantial cessation of the courts) be obtainedbusiness as carried on by the Group, then the undertakings contained in this clause 8 shall cease to have any effect from the date of such notice.
Appears in 1 contract
PROTECTION OF GOODWILL. 8.1 The Seller hereby 9.1 Each Manager undertakes to the Company (for itself and as trustee for each other Group Company) and (as a separate undertaking) to the Investor that:
9.1.1 for so long as he is employed by or engaged as a consultant to or director of the Company or any other Group Company he will, during normal business hours and such other hours as may be reasonably required, devote his full time and attention to the business of the Group and will use all reasonable endeavours to develop the business and interests of the Group and will use all reasonable endeavours to procure that such business is developed and expanded through the Group and shall not, without the approval of the Board, be concerned with, engaged or interested in, any other business whether or not in competition with any business carried on by the Group;
9.1.2 he or she will not, directly or indirectly, at any time prior to, nor during the period of 24 calendar months from the Relevant Date (except as otherwise agreed in writing with the Buyerexception of the Group CEO, for whom the period shall be 36 months) neither (the Seller not any of its subsidiary undertakings from time to time will either solely or jointly with any other person (either on its own account or as the agent of any other person“Non-Compete Period”):
(a) for a period of 2 years from Completion carry on solicit or be engaged or (except as the holder of shares in a listed company which confer not more than five per cent. of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the type of business carried on by any member of the Group at Completion in the United Kingdom and Germany;
(b) for a period of 2 years from Completion induceentice away, solicit or endeavour to solicit or entice away, or cause to leave be solicited or enticed away from the service or employment Company or any member of the Group, any person who during the period of 6 months prior to Completion was an employee of any member of the Group occupying a senior or managerial position and likely (in the opinion of the Buyer) to be:
(i) in possession of confidential information relating to; or
(ii) able to influence the customer relationships or connections of any member of the Group provided that this shall not restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any other Group Company; or
(iiib) for a period of two years from Completionemploy or engage, canvass, solicit, approach or seek out endeavour to employ or cause engage or causing to be canvassedemployed or engaged, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company any person for orders who was at the Relevant Date, or instructions in respect of who at any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom time during the period of 12 calendar months immediately prior to Completion.
8.2 Nothing in clause 8.1 shall prevent the Relevant Date had been, an employee of or restrict consultant to the Seller Company or any other Group Company (and with whom the Manager had dealings (other than in a de minimis way) during such 12 calendar month period) whether or not such person would commit a breach of its subsidiary undertakings from:his employment contract by reason of leaving service, save that this Clause 9.1.2 shall not apply to any employee or consultant engaged in a non-managerial or purely administrative role;
9.1.3 he or she will not, directly or indirectly, in any jurisdiction where the group has material revenues from time to time (to the extent he has been involved, other than in a de minimis way, with the activities of the Group in such geographies) at any time during the period of 24 calendar months from the Relevant Date (with the exception of the Group CEO, for whom the period shall be 36 months):
(a) carrying engage in; or
(b) be concerned or interested in, any business carried on in competition or being engaged will or is likely to compete with the Business or any other activities of the Company or any other Group Company with which he was associated at any time during the period of 12 calendar months prior to the Relevant Date; and
9.1.4 he or she will not, directly or indirectly, at any time during the period of 24 calendar months from the Relevant Date (with the exception of the Group CEO, for whom the period shall be 36 months):
(a) solicit the custom of or seek to do business with or deal with any customer or supplier to the Company or any Group Company with whom he had any dealings (other than in a de minimis way) at any time during the period of 12 calendar months prior to the Relevant Date so as to compete with or economically, interested harm the goodwill of the Company or any other Group Company during such period or in any business which, at other way interfere or endeavour to interfere with the date continuance of this agreement, it currently carries on or is engaged in or economically interested in or supplies to the Company and/or any reasonable extension or development thereof outside the United Kingdom and GermanyGroup Company from such a supplier;
(b) being interfere (or endeavour to interfere) with either the holder continuance of shares supplies to the Company and/or any Group Company (conferring not more than five per cent. of or the votes which would normally be cast at a general meeting of that companyterms relating to those supplies) by any customer or debentures of a company which is engaged in supplier or the relations between the Company and/or any business referred to in clause 8.1(a);Group Company and any such customer or supplier; or
(c) acquiring the whole be employed by or provide consultancy services to any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach major customer of the undertaking contained in clause 8.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:
(i) the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquired.
8.3 The Seller agrees that the undertakings contained in this clause 8 are reasonable and are entered into for the purpose of protecting the goodwill of the business of each member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit of any other person directly or indirectly represent itself to be connected with or interested in the business of the Group.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of the Buyer and of Company and/or any Group Company and that injunctive relief with whom he had any dealings (other than in addition to a de minimis way) at any other equitable remedies) may (subject time during the period of 12 calendar months prior to the discretion of the courts) be obtainedRelevant Date.
Appears in 1 contract
Samples: Management Shareholders Agreement (Global Blue Group Holding AG)
PROTECTION OF GOODWILL. 8.1 The Seller 11.1 Each of the Management Sellers hereby undertakes to procure that (except as otherwise agreed in writing with the Buyer) neither the Seller not any of its subsidiary undertakings from time to time will directly or indirectly and either solely or jointly with any other person (either on its his own account or as the agent of any other person):) and in any capacity whatsoever:
(a) 11.1.1 for a period of 2 two years from Completion carry on or be engaged or concerned or (except as the holder of shares in a listed company which confer not more than five per cent. of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the type of business carried on by any member of the Group at Completion in the United Kingdom UK and Germanythe Republic of Ireland;
(b) 11.1.2 for a period of 2 two years from Completion solicit or accept the custom of any person in respect of goods or services competitive with those manufactured or supplied by any member of the Group during the period of six months prior to Completion, such person having been a customer of the Company in respect of such goods or services during such period;
11.1.3 for a period of two years from Completion induce, solicit or endeavour to entice to leave the service or employment or of any member of the Group, any person who during the period of 6 twelve months prior to Completion was an employee of any member of the Group occupying a senior or managerial position Key Employee and reasonably likely (in the opinion of the Buyer) to be:
(ia) in possession of confidential information relating to; or
(iib) able to influence the customer relationships or connections of, any member of the Group; or
11.1.4 use any trade or domain name (including the expressions Astron) or email address used by any member of the Group provided that this shall not restrict at any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iii) for a period of two years from Completion, canvass, solicit, approach or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company any person for orders or instructions in respect of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom time during the period of 12 twelve months immediately prior to Completion.
8.2 Nothing in clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings from:
(a) carrying on or being engaged in or economically, interested in any business which, at preceding the date of this agreement, it currently carries on or is engaged in or economically interested in agreement or any reasonable extension other name intended or development thereof outside the United Kingdom and Germany;likely to be confused with any such trade or domain name or email address.
(b) being the holder of shares (conferring not more than five per cent. 11.1.5 Each of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:
(i) the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquired.
8.3 The Seller Management Sellers agrees that the undertakings contained in this clause 8 11 are reasonable and are entered into for the purpose of protecting the goodwill of the business of each member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit of any other person directly or indirectly represent itself to be connected with or interested in the business of the Group.
8.5 If a breach 11.2 Each undertaking contained in this clause 11 is and shall be construed as separate and severable and if one or more of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not undertakings is held to be sufficient compensation and that injunctive relief is reasonable and is likely against the public interest or unlawful or in any way an unreasonable restraint of trade or unenforceable in whole or in part for any reason the remaining undertakings or parts thereof, as appropriate, shall continue to bind the Management Sellers.
11.3 If any undertaking contained in this clause 11 shall be held to be essential void but would be valid if deleted in part or reduced in application, such undertaking shall apply with such deletion or modification as may be necessary to safeguard make it valid and enforceable. Without prejudice to the interests generality of the Buyer foregoing, in such circumstances, any relevant period (as the same may previously have been reduced by virtue of this clause 11.3) shall take effect as if reduced by six months until the resulting period shall be valid and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion of the courts) be obtainedenforceable.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase (Donnelley R R & Sons Co)
PROTECTION OF GOODWILL. 8.1 The Seller hereby undertakes to procure that (except as otherwise agreed in writing with the Buyer) neither the Seller not any of its subsidiary undertakings from time to time will either solely or jointly with any other person (either on its own account or as the agent of any other person):
(a) The Sellers recognize the paramount importance of the goodwill of the Company to the Buyer which is reflected in the consideration paid by the Buyer for the Shares. Accordingly, they are prepared to enter into the commitments contained in this Section 8 to ensure that the Buyer's interest in that goodwill is properly protected.
(b) The Sellers undertake that they shall not for a period of 2 years from Completion 24 months after Closing without the Buyer's prior written consent:
(i) carry on or be engaged engaged, concerned or (except as the holder of shares in a listed company which confer not more than five per cent. of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the type of business carried on by any member of the Group at Completion in Restricted Activities within the United Kingdom and GermanyKingdom;
(bii) for a period solicit or knowingly accept any order, inquiries or business in respect of 2 years any of the Restricted Activities from Completion any Customer;
(iii) divert away from the Company and/or the Buyer any orders, inquiries or business in respect of the Restricted Activities from any Customer;
(iv) procure any advertising in any media in respect of any of the Restricted Activities which is directed specifically at any area within the United Kingdom;
(v) procure or induce, solicit or endeavour endeavor to entice to leave the service procure or employment or induce, any member of the Group, any person who during the period of 6 months prior to Completion was an employee of any member employees of the Group occupying Company engaged in a senior or managerial position and likely (or who have had direct contact with Customers in the opinion course of their duties to cease working for the Company; or
(vi) seek to interfere with the ongoing relationships between the Company and its professional and business contacts which have been established prior to Closing.
(c) The Sellers undertake that they shall not at any time after Closing without the Buyer) to be's prior written consent:
(i) use the name "Data Systems Terminals Limited" or any other name identical to or likely to be confused with a name used by the Company prior to Closing in possession of connection with the Business (and for this purpose "name" includes a company or trading name);
(ii) hold themselves out as having any continuing connection with the Company or the Business;
(iii) make any public announcement regarding the Company, the Business or this transaction; or
(iv) disclose or use any trade secrets or confidential information (other than any which is public knowledge) relating toto the Company and/or the Business which they have acquired prior to Closing.
(d) The restrictions set out in Section 8(c) are to prevent each of the Sellers from carrying out any of the prohibited activities on their own behalf or jointly with or as servant, agent, manager, employee, consultant, director or shareholder of any other person, firm, company or body.
(e) Nothing in this Section 8 is to prevent:
(i) any of the Sellers from properly performing their duties under the Employment Agreements; or
(ii) able to influence the customer relationships or connections of any member of the Group provided that this shall not restrict any member Sellers from holding for investment purposes up to 1% of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iii) for a period of two years from Completion, canvass, solicit, approach or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company any person for orders or instructions in respect of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom during the period of 12 months immediately prior to Completion.
8.2 Nothing in clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings from:
(a) carrying on or being engaged in or economically, interested in any business which, at the date of this agreement, it currently carries on or is engaged in or economically interested in or any reasonable extension or development thereof outside the United Kingdom and Germany;
(b) being the holder of shares (conferring not more than five per cent. of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole or any part of a business which, or the issued share capital of a company whose shares are dealt in or group quoted on a recognized stock exchange.
(f) Each of companies whose business the commitments contained in this Section 8 gives rise to a separate obligation independent of the others.
(g) The parties consider the commitments contained in this Section 8 to be reasonable as between themselves and the public interest. If, however, any of them are found by a court to be unreasonable and unenforceable but would be reasonable and enforceable if certain words were deleted, then the commitment shall apply with those words deleted.
(h) The Buyer may by written notice to the Sellers vary by one or a more stages the terms of any part of whose businessthis Section 8 as it may apply to any of them, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 by reducing (the “Competitive Operations”), as part of a larger acquisition but not increasing) any one or series of related acquisitions provided thatmore of:
(i) the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in period during and/or activities to which the Seller or its relevant subsidiary undertaking has acquired an interestcommitments are to apply; andand 48
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations geographical area to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquiredcommitments relate.
8.3 The Seller agrees that the undertakings contained in this clause 8 are reasonable and are entered into for the purpose of protecting the goodwill of the business of each member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit of any other person directly or indirectly represent itself to be connected with or interested in the business of the Group.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of the Buyer and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion of the courts) be obtained.
Appears in 1 contract
PROTECTION OF GOODWILL. 8.1 The Seller 1.1 Each of the Vendors other than NatWest Ventures Nominees and each of the Warrantors whose name is set out in Part III of Schedule 1 (the "COVENANTORS") hereby undertakes undertake to procure that (except as otherwise agreed in writing with the BuyerPurchaser) neither the Seller they will not any of its subsidiary undertakings from time to time will either solely or jointly with any other person (either on its own account or as the agent of any other person):) except as an employee or director of Colorgraphic Direct Response Ltd or another Group Company:-
(a) for a period of 2 3 years from Completion carry on or be engaged or concerned or (except as the holder of shares in a listed company which confer not more than five per cent. of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes in United Kingdom and/or Germany with the type of business carried on by any member of the Group at Completion in the United Kingdom and and/or Germany;
(b) for a period of 2 3 years from Completion solicit or accept the custom of any person in respect of goods or services competitive with those manufactured or supplied by any member of the Group during the period of 12 months prior to Completion, such person having been a customer of any member of the Group in respect of such goods or services during such period;
(c) for a period of 3 years from Completion induce, solicit or endeavour to entice to leave the service or employment or of any member of the Group, any person who during the period of 6 12 months prior to Completion was an employee of any member of the Group occupying a senior or managerial position and likely (in the opinion of the BuyerPurchaser) to be:be:-
(i) in possession of confidential information relating to; or
(ii) able to influence the customer relationships or connections of any member of the Group provided that this shall not restrict Group;
(d) use any trade name for the purpose of any business (including the expressions Colorgraphic) used by any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) at any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iii) for a period of two years from Completion, canvass, solicit, approach or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company any person for orders or instructions in respect of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom time during the period of 12 months 3 years immediately prior to Completion.
8.2 Nothing in clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings from:
(a) carrying on or being engaged in or economically, interested in any business which, at preceding the date of this agreement, it currently carries on or is engaged in or economically interested in agreement or any reasonable extension other name similar thereto or development thereof outside the United Kingdom and Germany;
(b) capable of being the holder of shares (conferring not more than five per cent. of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in confused with any business referred to in clause 8.1(a);
(c) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:
(i) the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquiredtrade name.
8.3 1.2 The Seller agrees Covenantors agree that the undertakings contained in this clause 8 5 are reasonable and are entered into for the purpose of protecting the goodwill of the business of each member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit of any other person directly or indirectly represent itself to be connected with or interested in the business of the Group.
8.5 If a breach 1.3 Each undertaking contained in this clause 5 is and shall be construed as separate and severable and if one or more of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not undertakings is held to be sufficient compensation and that injunctive relief is reasonable and is likely against the public interest or unlawful or in any way an unreasonable restraint of trade or unenforceable in whole or in part for any reason the remaining undertakings or parts thereof, as appropriate, shall continue to bind the Covenantors.
1.4 If any undertaking contained in this clause 5 shall be held to be essential void but would be valid if deleted in part or reduced in application, such undertaking shall apply with such deletion or modification as may be necessary to safeguard make it valid and enforceable. Without prejudice to the interests generality of the Buyer foregoing, such period (as the same may previously have been reduced by virtue of this clause 5.4) shall take effect as if reduced by six months until the resulting period shall be valid and enforceable.
1.5 No provision of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (this agreement, by virtue of which this agreement is subject to registration (if such be the discretion case) under the Restrictive Trade Practices Act 1976 (unless this agreement is a non-notifiable agreement pursuant to section 27A of that Act), shall take effect until the courts) be obtainedday after particulars of this agreement have been furnished to the Director-General of Fair Trading pursuant to section 24 of that Act. For this purpose the expression "this agreement" includes any agreement or arrangement of which this agreement forms part and which is registrable or by virtue of which this agreement is registrable.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Shares (Big Flower Holdings Inc/)
PROTECTION OF GOODWILL. 8.1 The In consideration of the Buyer entering into the sale and purchase of the Shares, the Seller hereby undertakes to procure agrees with the Buyer that (except as otherwise agreed in writing with the Buyer) neither the Seller not nor any of its subsidiary undertakings from time to time will either solely or jointly or with any other person either directly or indirectly or through any of their respective employees or agents (either on its own account or as the agent of any other person):
(a) for a period of 2 three years from Completion provide services to or be employed or otherwise carry on or be engaged or (except as the holder of shares in a listed company which confer not more than five per cent. of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the type of business carried on by any member of the Group at Completion in the United Kingdom Pharma Sales and GermanyMarketing Business;
(b) for a period of 2 three years from Completion induceCompletion, solicit or endeavour to entice to leave canvass away from the service Buyer any person, firm or employment company or any member other organisation (which was a customer or supplier of the Group, Pharma Sales and Marketing Business) at any person who time during the twelve month period of 6 months prior to Completion was an employee of any member of the Group occupying a senior or managerial position and likely (in the opinion of the Buyer) to be:Completion);
(i) in possession of confidential information relating to; or
(ii) able to influence the customer relationships or connections of any member of the Group provided that this shall not restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iiic) for a period of two years from Completion, canvass, solicit, approach solicit or seek out entice away or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to solicit or entice away from the Buyer any senior manager, director, project manager or sales staff (excluding support staff) and any key employee who would be treated as a “relevant employee” for the purposes of the Model Code contained in the Listing Rules, employed or retained by any of the Companies in relation to the Pharma Sales and Marketing Business on Completion, whether or not such person would commit any breach of his contract of employment or terms of engagement by reason of his leaving the service of the Buyer PROVIDED THAT this restriction will not apply to any advertisements for recruitment made available generally through any recruitment agency or advertisement available to the public; or
(d) following Completion, use any of the Domain Names or e-mail address used by the Target Group Company at any person time during the two months immediately preceding the date of this agreement solely in relation to the Pharma Sales and Marketing Business or any other name intended or likely to be confused with any such trade or domain name or e-mail address solely in relation to the Pharma Sales and Marketing Business.
(e) for orders or instructions a period of three years following the expiry of one month after the passing by the Seller’s shareholders of the Name Change Resolution, use in respect the course of its business any of the Domain Names as the universal resource locator of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in web site accessible on the United Kingdom during the period of 12 months immediately prior to Completioninternet.
8.2 Nothing in clause 8.1 shall prevent or restrict any member of the Seller or any of its subsidiary undertakings Seller’s Group from:
(a) carrying on or being engaged in or economically, interested in any business which, at the date of this agreement, it currently carries on or is engaged in or economically interested in or any reasonable extension or development thereof outside the United Kingdom and Germany;
(b) being the holder of shares (conferring up to but not more than five exceeding fifteen per cent. cent of the votes which would normally be cast at a general meeting of that company) or fifteen per cent of the debentures of a company which is engaged in any business referred to in clause 8.1(a);
(cb) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:
PROVIDED THAT the relevant member of the Seller’s Group shall within the following twelve months use its reasonable endeavours to sell the Competitive Operations as soon as reasonably practicable following such acquisition (iwhich shall, without limitation, include inviting the Buyer to make a competitive bid for the sale of the Competitive Operations) save that the relevant member of the Seller’s Group shall not be obliged to sell the Competitive Operations if the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking Sellers Group has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) 8.2(b), a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed the lower of 10 per cent. cent of the gross turnover of the company, group of companies or business acquired per annum or £5 million gross turnover per annum of the Company, group of companies or business acquired.
8.3 The Seller agrees with the Buyer that it will not at any time after Completion, whether by itself or through any other member of the Seller’s Group, whether directly or indirectly, in the course of carrying on its business, claim or represent any continuing association with the Buyer in respect of the Pharma Sales and Marketing Business for the purpose of obtaining or retaining any business or custom from, or in competition with the Pharma Sales and Marketing Business.
8.4 The Seller agrees with the Buyer that the restrictions contained in this clause 7 are considered reasonable and necessary for the protection of value of the Pharma Sales and Marketing Business (in particular the goodwill of the Pharma Sales and Marketing Business) by the parties hereto and the Seller acknowledges that, in the light of the total price paid under this agreement and the manner of computation thereof, the nature of the business of the Target Group and all other relevant matters, the provisions of this clause 6 are considered reasonably necessary for the protection of the interests of the Buyer, and the restrictive covenants do not go beyond what is reasonably necessary to protect the legitimate business interests of the Buyer.
8.5 In the event that any restriction in this clause 8 shall be found to be unenforceable but would be enforceable if some part thereof were deleted or the area of operation or the period of application reduced, such restriction shall apply with such modification as may be necessary to make it legal and enforceable. Without prejudice to the generality of the foregoing, if such invalidity arises by reason of the period of restriction being excessive, such period as shall be held by a court of competent jurisdiction to be reasonable shall be able to be substituted for the period herein in order to make the restriction binding on the relevant parties.
8.6 Each undertaking contained in this clause 8 shall be construed as a separate undertaking and if one or more of the undertakings contained in this clause 8 are reasonable and are entered into for is held to be against the purpose of protecting the goodwill of the business of each member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself public interest or by an agent and either on its own account or by unlawful or in association with or for any way an unreasonable restraint of trade the benefit of any other person directly or indirectly represent itself remaining undertakings shall continue to be connected with or interested in the business of the Group.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, bind the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of the Buyer and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion of the courts) be obtainedits subsidiary undertakings.]
Appears in 1 contract
PROTECTION OF GOODWILL. 8.1 The Seller 10.1 Each of the Covenantors hereby undertakes to the Purchaser with the intent of assuring to the Purchaser the full benefit and value of the goodwill and connections of each of the Target Group Companies and as a constituent part of the Agreement for the sale of the Sale Shares that he will not and that he will procure that (except as otherwise agreed none of his Connected Persons will:
10.1.1 exceeding 3% in writing with nominal value of the Buyer) neither the Seller not any of its subsidiary undertakings from time to time will either solely or jointly with any other person (either on its own account or as the agent securities of any class) or provide financial, technical or other person):
(a) for a period of 2 years from Completion carry on or be engaged or (except as the holder of shares in a listed company which confer not more than five per cent. of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a support to any business which competes directly or seeks to compete directly with the type of any business carried on by any member of the Target Group Companies at Completion the date of this Agreement. For the purposes of this Clause 10 the parties agree that the business carried on by the Target Group Companies at the date of this agreement shall without prejudice to the foregoing generality be deemed to include the following: the design, manufacture and supply of products for use in the United Kingdom drilling and Germanycompletion of oil and gas wellx xx follows: PDC Drill Bits, Drill Shoe, Slick Sleeve, Reamer Shoe, Gauge Alert and Diamond Blade Stabiliser;
10.1.2 except to the extent required by law not at any time following the date of this Agreement divulge to any person or otherwise make use of any secrets, trade secrets, confidential knowledge or information concerning the business, finance or affairs of any of the Target Group Companies.
10.1.3 (bwithout prejudice to the generality of the provisions contained in Clauses 10.1.1 and 10.1.2 of this Clause) for a period the Relevant Period next following the date of 2 years from Completion induce, solicit this Agreement directly or endeavour to entice to leave the service or employment or any member of the Group, any person who during the period of 6 months prior to Completion was an employee of any member of the Group occupying a senior or managerial position and likely (in the opinion of the Buyer) to be:
(i) in possession of confidential information relating to; or
(ii) able to influence the customer relationships or connections of any member of the Group provided that this shall not restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iii) for a period of two years from Completion, canvass, indirectly solicit, approach interfere with or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any of the Target Group Company Companies any person for orders who is a director or instructions in respect employee of any goods such company engaged in its management or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom during the period management of 12 months immediately prior to Completion.
8.2 Nothing in clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings from:
branches or in a sales capacity or otherwise in a commercially sensitive position (a) carrying on whether or being engaged in or economically, interested in not such person would commit any business which, at the date of this agreement, it currently carries on or is engaged in or economically interested in or any reasonable extension or development thereof outside the United Kingdom and Germany;
(b) being the holder of shares (conferring not more than five per cent. of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of 24 24 his contract of employment or engagement by reason of leaving the undertaking contained in clause 8.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:
(i) the Competitive Operations comprise a minor part of the business or the business service of such company) nor knowingly employ or aid or assist in or procure the employment by any other person, group firm or company of companies or businesses acquired or in which any such person;
10.1.4 (without prejudice to the Seller or its relevant subsidiary undertaking has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes generality of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquired.
8.3 The Seller agrees that the undertakings provisions contained in this clause 8 are reasonable Clause 10.1.1 and are entered into for the purpose of protecting the goodwill of the business of each member of the Group as carried out at Completion10.
8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit of any other person directly or indirectly represent itself to be connected with or interested in the business of the Group.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of the Buyer and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion of the courts) be obtained.
Appears in 1 contract
Samples: Acquisition Agreement (Weatherford International Inc /New/)
PROTECTION OF GOODWILL. 8.1 The (a) In order to confer upon Buyer the full benefit of the business and goodwill of the Group, each Seller hereby undertakes to procure Buyer and each member of the Buyer Group that (except as otherwise agreed it shall not either alone or in writing conjunction with the Buyer) neither the Seller not any of its subsidiary undertakings from time to time will either solely or jointly with any other person (either on its own account or as the agent behalf of any other person):
(a) for , do any of the following during a period of 2 three years following the Closing Date offer employment to, enter into a contract for the services of, or attempt to entice away from Completion carry on any of the Group Companies, any individual who is at that time, and was at the Closing Date, employed or be directly engaged in a key executive or managerial position with any of the Group Companies (except as the holder a person who responds, without any form of shares in a listed company which confer not more than five per cent. approach or solicitation by or on behalf of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the type of business carried on by any member of the Group at Completion Sellers Group, to a general public advertisement made in the United Kingdom and Germanyordinary course of business) or procure or facilitate the making of any such attempt by any other person;
(b) for In addition and in furtherance of the above, each Management Seller undertakes to Buyer and each member of the Buyer Group that it shall not either alone or in conjunction with or on behalf of any other person, do any of the following during a period of 2 three years from Completion induce, solicit or endeavour to entice to leave following the service or employment or any member of the Group, any person who during the period of 6 months prior to Completion was an employee of any member of the Group occupying a senior or managerial position and likely (in the opinion of the Buyer) to beClosing Date:
(i) except in possession the ordinary course of confidential information relating to; or
(ii) able business, deal with or canvass, solicit or seek to influence solicit the customer relationships or connections custom of any member person who has been a regular customer of any of the Group provided that this shall not restrict Companies at any member of time within the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iii) for a period of two years from Completion, canvass, solicit, approach or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company any person for orders or instructions in respect of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom during the period of 12 months immediately prior to Completion.
8.2 Nothing in clause 8.1 shall prevent Closing if that dealing or restrict the Seller solicitation causes or could cause such customer to cease being a customer of any of its subsidiary undertakings from:
(a) carrying on or being engaged in or economically, interested in any business which, at the date of this agreement, it currently carries on or is engaged in or economically interested in or any reasonable extension or development thereof outside the United Kingdom and Germany;
(b) being the holder of shares (conferring not more than five per cent. of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:
(i) the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interestGroup Companies; and
(ii) except in the Seller ordinary course of business, solicit or its relevant subsidiary undertaking disposes entice away from any of the Competitive Operations Group Companies any supplier who had supplied goods and/or services to a third party outside any of the Seller’s Group within one year Companies at any time during the 12 months immediately prior to Closing if that solicitation or enticement causes or could cause such supplier to cease supplying, or materially reduce its supply of, those goods and/or services to any of the date Group Companies. |EU-DOCS\31822603.17||
(c) The undertakings in this Section 12 are intended for the benefit of acquisition of such Competitive Operations. For Buyer and each Group Company and apply to actions carried out by the purpose of this clause 8.2(c) a “minor part” relevant Sellers in any capacity whatsoever and whether directly or indirectly, on the Management Sellers’ or any Affiliate of the business Management Sellers' own behalf, on behalf of such company, group of companies any other person or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquiredjointly with any other person.
8.3 The (d) Each Management Seller and Seller who is a natural person agrees that the undertakings contained in this clause 8 Section 12 are reasonable and are entered into necessary for the purpose protection of protecting Buyer’s legitimate interests in the goodwill of the business of each member of Group Companies and do not prevent the Group as carried out at Completionrelevant Management Sellers and Sellers to exercise another professional activity complying with their professional training and experience.
8.4 The Seller undertakes (e) Without prejudice to the Buyer that at all times it will not Section (and will procure that none of its subsidiary undertakings will) either itself c), if any undertaking in this Section 12 is found by any court or by an agent and either on its own account or by or in association with or for the benefit of any other person directly or indirectly represent itself competent Authority to be connected with void or interested in unenforceable the business of the Group.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occursManagement Sellers, the Seller relevant Sellers and the Buyer agree that damages alone are likely not shall negotiate in good faith to be sufficient compensation replace such void or unenforceable undertaking with a valid provision which, as far as possible, has the same commercial effect as the provision which it replaces and that injunctive relief is reasonable and is likely to be essential to safeguard the interests validity of the other undertakings shall not be affected.
(f) The Sellers acknowledge that the violation of any such undertakings may generate a damage to Buyer and the Group Companies of such significance that it would not be sufficiently compensated by the allocation of damages. Consequently, Buyer expressly reserve the right to request for any conservatory or enforceable measure pertaining to prohibit the conduct of any Group Company and that injunctive relief (in addition to activities which violates any other equitable remedies) may (subject to the discretion of the courts) be obtainedundertakings provided in this Section 12.
Appears in 1 contract
PROTECTION OF GOODWILL. 8.1 The Seller hereby undertakes to procure that (except as otherwise agreed in writing with the Buyer) neither the Seller not any of its subsidiary undertakings from time to time will either solely or jointly with any other person (either on its own account or as the agent of any other person):
(a) Each Seller severally undertakes to the Buyer (for a period of 2 years from Completion carry on or be engaged or (except as itself and for the holder of shares in a listed company which confer not more than five per cent. benefit of the votes which can generally be cast at a general meeting Buyer's Group) that it shall not, and shall procure that no Representatives acting on its behalf of the company) interested directly or indirectly in a business which competes with the type of business carried on by any member of the Group at Completion in the United Kingdom and Germany;
(b) for a period of 2 years from Completion induce, solicit or endeavour to entice to leave the service or employment or any member of the Group, any person who during the period of 6 months prior to Completion was an employee behalf of any member of the Sellers' Group occupying a senior shall, directly or managerial position and likely (in indirectly, during the opinion of the Buyer) to beRestricted Period:
(i) in possession the Restricted Territory carry on, be engaged in or be economically interested in the business of confidential information relating to; orowning or leasing properties or infrastructure used in connection with outdoor advertising which is in competition with the business of the Group as carried on at the Effective Time;
(ii) able to influence canvass or solicit the customer relationships or connections custom in the Restricted Territory of any member person, firm or company who has within two years prior to the Effective Time been a regular customer of the Group provided that this shall not restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group CompanyGroup; or
(iii) for a period of two years from Completion, canvass, solicit, approach induce or seek out to induce any Restricted Employee to become employed whether as an employee, consultant or cause to be canvassedotherwise, solicited, approached or sought out or by any other means endeavour member of the Sellers' Group, whether or not such Restricted Employee would thereby commit a breach of his contract of service. The placing of an advertisement of a post available to entice away from the public generally and the recruitment of a person through an employment agency shall not constitute a breach of this Clause 5.3(a)(iii) provided that neither the Sellers nor any Group Company any person for orders Representatives acting on their behalf or instructions in respect on behalf of any goods member of the Sellers' Group encourages or services competitive with those supplied advises such agency to approach any such Restricted Employee.
(b) The Buyer undertakes to each Seller (for itself and for the benefit of the Sellers' Group) that it shall not, and shall procure that no Representative acting on its behalf or on behalf of any member of the Buyer's Group shall, directly or indirectly, during the Restricted Period induce or seek to induce any Landmark Employee to become employed whether as an employee, consultant or otherwise, by any member of the Buyer's Group, whether or not such Landmark Employee would thereby commit a breach of his contract of service. The placing of an advertisement of a post available to the public generally and the recruitment of a person through an employment agency shall not constitute a breach of this Clause 5.3(b) provided that neither the Buyer nor any Representatives acting on its behalf or on behalf of any member of the Buyer's Group Company and with whom encourages or advises such agency to approach any Group Company has transacted as a supplier in Germany and/or in the United Kingdom during the period of 12 months immediately prior to Completionsuch Landmark Employee.
8.2 Nothing (c) The restrictions in clause 8.1 Clause 5.3(a) shall prevent or restrict not operate to prohibit any member of the Seller or any of its subsidiary undertakings Sellers' Group from:
(ai) carrying on or being engaged in or economically, being economically interested in any business which, at which is of the date of this agreement, it currently carries same or similar type to the business as now carried on by the Group after such time as the Buyer ceases to carry on or is be engaged in or economically interested in or any reasonable extension or development thereof outside the United Kingdom and Germanybusiness carried on by the Group;
(bii) holding or being the holder of shares (conferring not more than five interested in up to 5 per cent. cent of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole or any part of a business which, or the outstanding issued share capital of a company or group of companies whose business or listed on any recognised stock exchange;
(iii) holding a part of whose business, includes operations the carrying on of which would otherwise amount to a breach non-controlling interest in any company provided that no member of the undertaking contained in clause 8.1 (Sellers' Group nor any Representatives acting on their behalf exercises a management function or exercises material influence over the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:company; or
(iiv) the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interest; andfulfilling any obligation pursuant to this Agreement and any agreement to be entered into pursuant to this Agreement.
(iid) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquired.
8.3 The Seller agrees parties agree that the undertakings restrictions contained in this clause 8 Clause 5.3 are reasonable and are entered into for the purpose of protecting the goodwill of the business of each member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit of any other person directly or indirectly represent itself to be connected with or interested in the business of the Group.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief no greater than is reasonable and is likely to be essential to safeguard necessary for the protection of their respective interests (and the interests of the Buyer and of any Buyer's Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion case of the courtsBuyer) and the Sellers' Group (in the case of the Sellers)) but if any such restriction shall be obtainedheld to be void but would be valid if deleted in part or reduced in application, such restriction shall apply with such deletion or modification as may be necessary to make it valid and enforceable.
(e) The following terms shall have the following meanings respectively in this Clause 5.3:
Appears in 1 contract
Samples: Sale and Purchase Agreement (Landmark Infrastructure Partners LP)
PROTECTION OF GOODWILL. 8.1 The In consideration of the Buyer entering into the sale and purchase of the Shares, the Seller hereby undertakes to procure that (except as otherwise agreed in writing agrees with the Buyer) neither the Seller not Buyer that it will not, whether on its own account, or by any of its subsidiary undertakings from time to time will or through any of their respective employees or agents or through any other person, firm or company either directly or indirectly and either solely or jointly with any other person (either on its own account or as the agent of any other person):
(a) and in any capacity whatsoever: for a period of 2 three years from the Completion carry on Date, provide services to or be employed or otherwise engaged or interested in any business which is engaged in the provision or supply of Restricted Services (except or any of them) in the Restricted Territory which competes with the CTS Business. Both parties agree that the carrying on of the ICTI Business by the Seller or any member of the Seller's Group at any time after Completion shall not be in contravention of this undertaking; for a period of three years from the Completion Date, solicit or canvass away from the Buyer any person, firm or company or other organisation (which was a customer or supplier of any of the Companies in respect of the CTS Business at any time during the twelve month period prior to Completion only for the provision of Restricted Services (or any of them)); for a period of two years from the Completion Date, solicit or entice away or endeavour to solicit or entice away from the Buyer any senior manager, director, project manager or sales staff (excluding support staff) and any key employee who would be treated as a "relevant employee" for the purposes of the Model Code contained in the Listing Rules, employed or retained by any of the Companies in relation to the CTS Business on Completion, whether or not such person would commit any breach of his contract of employment or terms of engagement by reason of his leaving the service of the Buyer PROVIDED THAT this restriction will not apply to any advertisements for recruitment made available generally through any recruitment agency or advertisement available to the public; use any trade or domain name (including but not limited to the expressions "CTS" or "Technigal") or e-mail address used by the Group at any time during the two months immediately preceding the date of this agreement solely in relation to the CTS Business or any other name intended or likely to be confused with any such trade or domain name or e-mail address; or for a period of three years following the Completion date, use in the course of its business either of the domain names gxxxxxxxxxxxx.xxx or gxxxx-xxxxxxxx.xxx as the holder universal resource locator of shares any web site accessible on the internet. Nothing in a listed this clause 9 shall prevent or restrict any member of the Seller's Group from doing the following if they would otherwise be prohibited by this clause 9:- holding, or being interested in, up to but not exceeding 15 per cent. of the issued share or loan capital of any company which confer (or any amount of such issued share or loan capital carrying in aggregate up to but not more than five exceeding 15 per cent. of the votes which can generally could be cast at a general meeting of the such company) interested directly including without limitation a listed company; or indirectly in a business which competes with the type of business carried on by any member of the Group at Completion in the United Kingdom and Germany;
(b) for a period of 2 years from Completion induce, solicit or endeavour to entice to leave the service or employment or any member of the Group, any person who during the period of 6 months prior to Completion was an employee of any member of the Group occupying a senior or managerial position and likely (in the opinion of the Buyer) to be:
(i) in possession of confidential information relating to; or
(ii) able to influence the customer relationships or connections of any member of the Group provided that this shall not restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iii) for a period of two years from Completion, canvass, solicit, approach or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company any person for orders or instructions in respect of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom during the period of 12 months immediately prior to Completion.
8.2 Nothing in clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings from:
(a) carrying on or being engaged in or economically, interested in any business which, at the date of this agreement, it currently carries on or is engaged in or economically interested in or any reasonable extension or development thereof outside the United Kingdom and Germany;
(b) being the holder of shares (conferring not more than five per cent. of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 9.1 (the “"Competitive Operations”"), as part of a larger acquisition or series of related acquisitions provided that:
PROVIDED THAT the relevant member of the Seller's Group shall within the following twelve months use their best endeavours to sell the Competitive Operations as soon as is reasonably practicable following such acquisition (iwhich shall, without limitation, include inviting the Buyer to make a competitive bid for the sale of the Competitive Operations) save that the relevant member of the Seller's Group shall not be obliged to sell the Competitive Operations if those Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking Seller's Group has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “9.2(b), "minor part” " of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 the lower of ten per cent. cent of the gross turnover per annum or L5 million gross turnover per annum of the companyCompany, group of companies or business acquired.
8.3 . The Seller agrees with the Buyer that it will not at any time after Completion, whether by itself or through any other member of the Seller's Group, whether directly or indirectly, in the course of carrying on its business, claim or represent any continuing association with the Buyer in respect of the CTS Business for the purpose of obtaining or retaining any business or custom. The Seller agrees with the Buyer that the restrictions contained in this clause 9 are considered reasonable and necessary for the protection of value of the CTS Business (in particular the goodwill of the CTS Business) by the parties hereto and the Seller acknowledges that, in the light of the total price paid under this agreement and the manner of computation thereof, the nature of the business of the Group and all other relevant matters, the provisions of this clause 9 are considered reasonably necessary for the protection of the interests of the Buyer, and the restrictive covenants do not go beyond what is reasonably necessary to protect the legitimate business interests of the Buyer. In the event that any restriction in this clause 9 shall be found to be unenforceable but would be enforceable if some part thereof were deleted or the area of operation or the period of application reduced, such restriction shall apply with such modification as may be necessary to make it legal and enforceable. Without prejudice to the generality of the foregoing, if such invalidity arises by reason of the period of restriction being excessive, such period as shall be held by a court of competent jurisdiction to be reasonable shall be able to be substituted for the period herein in order to make the restriction binding on the relevant parties. Each undertaking contained in this clause 9 shall be construed as a separate undertaking and if one or more of the undertakings contained in this clause 8 are reasonable and are entered into for 9 is held to be against the purpose of protecting the goodwill of the business of each member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself public interest or by an agent and either on its own account or by unlawful or in association with or for any way an unreasonable restraint of trade the benefit of any other person directly or indirectly represent itself remaining undertakings shall continue to be connected with or interested in the business of the Group.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, bind the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of the Buyer and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion of the courts) be obtainedits subsidiary undertakings.
Appears in 1 contract
PROTECTION OF GOODWILL. 8.1 7.1 The Seller hereby undertakes to procure that (except as otherwise agreed in writing with the Buyer) neither the Seller not any of its subsidiary undertakings from time to time will either solely or jointly with any other person (either on its own account or as the agent of any other person):) no member of the Seller’s Group will:
(a) for a period of 2 three years from Completion carry on or be engaged or (except as the holder of shares in a listed company which confer not more than five per cent. of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the type of business carried on by any member of the Group at Completion in the United Kingdom and GermanyKingdom;
(b) for a period of 2 two years from Completion induce, solicit or endeavour to entice to leave the service or employment or of any member of the Group, any person who during the period of 6 three months prior to Completion was an employee of any member of the Group occupying a senior or managerial position and likely (in the opinion of the Buyer) to be:
(i) in possession of confidential information relating to; or
(ii) able to influence the customer relationships or connections of of, any member of the Group provided that this shall not restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iii) for a period of two years from Completion, canvass, solicit, approach or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company any person for orders or instructions in respect of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom during the period of 12 months immediately prior to Completion.
8.2 7.2 Nothing in clause 8.1 7.1 shall prevent or restrict any member of the Seller or any of its subsidiary undertakings Seller’s Group from:
(a) carrying on or being engaged in or economically, economically interested in any business which, at referred to in clause 7.1(a) after such time as the date of this agreement, it currently carries Buyer’s Group ceases to carry on or is be engaged in or economically interested in or such business to any reasonable extension or development thereof outside the United Kingdom and Germanymaterial extent;
(b) being the holder of shares (conferring not more than five per cent. of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a7.1(a);
(c) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 7.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:
(i) if the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking Seller’s Group has acquired an interest; and
interest and provided that (iii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year does not expand or develop the Competitive Operations such that they cease to be a minor part of the date of acquisition of such Competitive Operations. For business and for the purpose of this clause 8.2(c) 7.2 a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 five per cent. of the gross turnover of the company, group of companies or business acquiredacquired and (ii) the Competitive Operations are, as soon as reasonably practicable following their acquisition by the Seller’s Group, offered for sale to the Buyer (or any member of the Buyer’s Group that the Buyer shall nominate for that purpose) on substantially the same terms as those on which the Seller’s Group acquired the Competitive Operations.
8.3 The Seller agrees that 7.3 While the undertakings restrictions contained in this clause 8 7 are considered by the Parties to be reasonable and are entered into in all the circumstances, it is recognised that restrictions of their nature may fail for technical reasons. Accordingly it is agreed that, if any of such restrictions shall be found to be invalid or unenforceable as going beyond what is legally permissible for the purpose protection of protecting the goodwill of the business of each member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit of any other person directly or indirectly represent itself to be connected with or interested in the business of the Group.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of the Buyer and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion or otherwise, but would be valid or enforceable if part of the courts) wording of the restriction were deleted or the period for which it applies were reduced or the range of activities or area dealt with by it were reduced in scope, the restriction concerned shall apply with such modifications as may be obtainednecessary to make it valid and enforceable.
Appears in 1 contract
Samples: Share Purchase Agreement (Allied Healthcare International Inc)
PROTECTION OF GOODWILL. 8.1 The Seller 11.1 Covenants As further consideration for the Purchaser agreeing to purchase the Shares on the terms contained in this Agreement and with the intent of assuring to the Purchaser the full benefit and value of the goodwill and connections of the Group and as a constituent part of the sale of the Shares, each Restricted Warrantor hereby undertakes to procure the Purchaser (contracting for itself and on behalf of the Company and of each of the Subsidiaries and for any successor in title to the Shares or to part or all of the Business) that (except as otherwise agreed in writing a director or employee of the Company or of any of the Subsidiaries or with the Buyerwritten consent of the Purchaser) neither the Seller he shall not any of its subsidiary undertakings from time to time will either solely whether on his own behalf or jointly with any other person (either or on its own account or as the agent behalf of any other person):person and whether directly or indirectly by any or person or business controlled by them or any Connected Person:
(a) for 11.1.1 For a period of 2 3 years from Completion carry on or be engaged employed, engaged, concerned, interested or (except as the holder of shares in a listed company which confer not more than five per cent. of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the type of business carried on by any member of the Group at Completion in way assist within the United Kingdom and Germany;any business which may in any way be in competition with all or part of the Business provided that nothing in this sub-clause 12.
(b) 1.1 shall prevent a Restricted Warrantor from holding for investment purposes only any units of an authorised unit trust and/or
1.2 For a period of 2 3 years from Completion inducecanvass, solicit or endeavour to entice to leave the service or employment or any member of the Group, any person who during the period of 6 months prior to Completion was an employee of any member of the Group occupying a senior or managerial position and likely (in the opinion of the Buyer) to be:
(i) in possession of confidential information relating to; or
(ii) able to influence the customer relationships or connections of any member of the Group provided that this shall not restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iii) for a period of two years from Completion, canvass, solicit, approach or seek out or cause to be canvassed, solicited, solicited or approached (in relation to a business which may in any way compete with all or sought out part of the Business) the custom of any person who at any time during the 12 months preceding Completion shall have been a client or by customer [or joint venture partner] of the Company or of any other means endeavour of the Subsidiaries; 11.
1.3 For a period of 3 years from Completion in relation to entice away a business which may in any way compete with all or part of the Business provide or seek to provide services to any person who at any time during the 12 months preceding Completion shall have been a client or customer of the Company or of any of the Subsidiaries; 11.
1.4 For a period of 3 years from Completion interfere or seek to interfere or take such steps as may interfere with supplies to the Company and/or any of the Subsidiaries from any Group Company any person for orders or instructions in respect of any suppliers who shall have been supplying goods or services competitive to the Company or to any of the Subsidiaries for use in connection with those supplied by the Business at any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom time during the period of 12 months immediately prior to the date of Completion; 11.
8.2 Nothing 1.5 For a period of 3 years from Completion offer employment to or employ or offer to conclude any contract of services with employees of the Company or of any of the Subsidiaries employed in clause 8.1 shall prevent a managerial, supervisory or restrict sales capacity or procure or facilitate the Seller making of such an offer by any person, firm or company or entice or endeavour to entice any such employees of the Company or of any of the Subsidiaries to terminate their employment with the Company or any of its subsidiary undertakings from:the Subsidiaries; or 11.
(a1.6 at any time after Completion use as a trade or business name or mark or carry on a business under a title contaxxxxg the word(s) carrying on "Stirling Shipping Company" or being engaged "Stirling" in or economically, interested in conjunction with any business which, at the date of this agreement, it currently carries on or is engaged in or economically interested in word which has a maritime connotation or any reasonable extension or development thereof outside other word(s) which is(are) deliberately calculated to resemble the United Kingdom same provided that nothing in this sub-clause shall prevent a Demerged Company from using the names STIRLING CLYDE and Germany;
(b) being the holder of shares (conferring not more than five per cent. of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying STIRLING FORTH on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 (the “Competitive Operations”), those namex vessels transferred as part of the Demerger so long as such vessels are owned by a larger acquisition or series of related acquisitions provided that:
(i) the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquired.
8.3 The Seller agrees that the undertakings contained in this clause 8 are reasonable Demerged Company and are entered into for the purpose of protecting the goodwill of the business of each managed by a member of the Group as carried out at Completion.
8.4 The Seller undertakes to or the Buyer that at all times it will not (Purchaser's Group. Each undertaking contained in this sub-clause 11.1 shall be read and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit of any other person directly or indirectly represent itself to be connected with or interested in the business construed independently of the Groupother undertakings herein as an entirely separate and severable undertaking.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of the Buyer and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion of the courts) be obtained.
Appears in 1 contract
PROTECTION OF GOODWILL. 8.1 The 16.1 In consideration of the Buyer entering into the sale and purchase of the Business and Assets, the Seller hereby undertakes to and with the Buyer that it shall not and shall procure that (except as otherwise agreed the Seller’s Group shall not, whether directly or indirectly and whether alone or in writing conjunction with the Buyer) neither the Seller not any of its subsidiary undertakings from time to time will either solely or jointly with any other person (either on its own account or as the agent behalf of any other person):, whether as principal, shareholder, director, employee, agent, consultant or otherwise:
(a) for a period of 2 years from Completion 16.1.1 during the Restricted Period, carry on or be engaged engaged, concerned or interested (except save as the holder of shares or debentures in a listed company which confer not more than five three per cent. cent of the votes which can generally could be cast at a general meeting of the company) interested directly or indirectly in a any business which competes is in competition with the type of business carried on by any member of the Group Business as at Completion in within the United Kingdom and GermanyRestricted Territory;
(b) for a period of 2 years from Completion induce16.1.2 during the Restricted Period, solicit or endeavour to entice to leave solicit the service custom of any person, firm or employment company who or any member of the Group, any person who which was either at Completion or during the period of 6 months two (2) years prior to Completion was an employee of any member a client or customer of the Group occupying Seller;
16.1.3 use any trade or domain name or e-mail address used by the Business or any name intended or likely to be confused with any such trade or domain name or e-mail address;
16.1.4 for a senior period of one (1) year from Completion, offer employment to or managerial position and likely (in solicit or entice away or endeavour to solicit or entice away from the opinion Buyer any Assumed Employees, whether or not such person would commit any breach of his contract of employment or terms of engagement by reason of his leaving the service of the Buyer) ; PROVIDED THAT this restriction will not apply to beany advertisement for recruitment made available generally through any recruitment agency or advertisement available to the public.
16.2 In consideration of the Buyer entering into this Agreement, the Seller undertakes to and with the Buyer that it shall and shall procure that Seller’s Guarantor and the Seller’s Group shall :
(i) in possession 16.2.1 unless required by law or the rules of any governmental or regulatory organisation, keep confidential and not use or reveal to any person any of the trade secrets, secret or confidential operations, processes or dealings or any other information relating toprimarily and directly to the Business including (without limitation) customer lists and names, sales targets and statistics, market share statistics, surveys and reports and pricing information relating to sales and purchases in respect of the Business until such time as the same falls into the public domain otherwise than by reason of a breach of this undertaking; or
(ii) able 16.2.2 attempt or knowingly assist or procure any other person to influence the customer relationships or connections of do any member of the Group provided that this foregoing things.
16.3 The provisions of Clause 16.1 shall not prevent or restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iii) for a period of two years from Completion, canvass, solicit, approach or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company any person for orders or instructions in respect of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom during the period of 12 months immediately prior to Completion.
8.2 Nothing in clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings from:
(a) carrying on or being engaged in or economically, interested in any business which, at the date of this agreement, it currently carries on or is engaged in or economically interested in or any reasonable extension or development thereof outside the United Kingdom and Germany;
(b) being the holder of shares (conferring not more than five per cent. of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 Clause 16.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:
(i) PROVIDED THAT the relevant member of the Seller’s Group shall within the following twelve months use their best endeavours to sell the Competitive Operations as soon as is reasonably practicable following such acquisition save that the relevant member of the Seller’s Group shall not be obliged to sell the Competitive Operations if those Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking Seller’s Group has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a Clause 16.3, “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 nineteen per cent. cent (19%) of the gross turnover per annum of the companyCompany, group of companies or business acquired
16.4 The restrictions contained in this Clause 16 are considered reasonable by the parties hereto and the Seller acknowledges that, in the light of the total price paid under this Agreement and the manner of computation thereof, the nature of the Business and all other relevant matters, the provisions of this Clause 16 are considered reasonably necessary for the protection of the interests of the Buyer.
8.3 The Seller agrees 16.5 In the event that any restriction in this Clause 16 shall be found to be unenforceable but would be enforceable if some part thereof were deleted or the area of operation or the period of application reduced, such restriction shall apply with such modification as may be necessary to make it legal and enforceable.
16.6 Each undertaking contained in this Clause 16 shall be construed as a separate undertaking and if one or more of the undertakings contained in this clause 8 are reasonable and are entered into for Clause 16 is held to be against the purpose public interest or unlawful or in any way an unreasonable restraint of protecting trade the goodwill of the business of each remaining undertakings shall continue to bind any member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit of any other person directly or indirectly represent itself to be connected with or interested in the business of the Seller’s Group.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of the Buyer and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion of the courts) be obtained.
Appears in 1 contract
PROTECTION OF GOODWILL. 8.1 The Seller hereby 25.1 In order to assure to the Purchaser the full benefit of the business, including know-how, and goodwill of the Target Companies and of the Comtek Business, the Vendor undertakes to that it shall not (and shall procure that Comtek and all other members of the Filtronic Group shall not) directly or indirectly (except whether as otherwise agreed in writing with the Buyer) neither the Seller not any of its subsidiary undertakings from time to time will either solely principal, shareholder, partner, employees, agent or jointly with any other person (either otherwise), whether on its own account or as the agent in conjunction with or on behalf of any other person):, do any of the following things:
(a) for a period of 2 years from Completion during the Restricted Period carry on or be engaged engaged, concerned or (except as the holder of shares in a listed company which confer not more than five per cent. of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the type of business carried on by any member of the Group at Completion in the United Kingdom and Germany;Restricted Business; or
(b) for a period of 2 years from Completion induce, during the Restricted Period canvass or solicit or endeavour seek to entice to leave away the service or employment or any member of the Group, any person who during the period of 6 months prior to Completion was an employee custom of any member Client or Prospective Client for the purposes of the Group occupying a senior or managerial position and likely (in the opinion of the Buyer) to be:
(i) in possession of confidential information relating toproviding Restricted Business; or
(iic) able to influence during the customer relationships or connections Restricted Period accept orders for the provision of Restricted Business in respect of any member of the Group provided that this shall not restrict any member of the Seller’s Group from advertising Client or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group CompanyProspective Client; or
(iiid) for a period from the date of two years from this Agreement until Completion, canvass, solicit, approach solicit any persons engaged or seek out employed in the Wireless Infrastructure Business to remain or cause to be canvassed, solicited, approached or sought out become employees of the Filtronic Group following Completion (save by way of a general advertisement or by way of a general recruitment campaign, in either case not targeted at any other means particular Senior Employee or only at Senior Employees generally); or
(e) during the Restricted Period endeavour to entice away from any Target Company (or any successor company with which such Target Company merges) or from any Purchaser Group Company or encourage to terminate his employment with any Target Company (or any successor company with which such Target Company merges) or with any Purchaser Group Company (whether or not such termination would be a breach of his contract of employment) any Senior Employee (save by way of a general advertisement or by way of a general recruitment campaign not targeted at any particular Senior Employee or only at Senior Employees generally); or
(f) during the Restricted Period employ or otherwise engage any Management Employee, unless such Management Employee has been made redundant post Completion or his/her employment has been terminated by mutual consent; or
(g) save in the circumstances referred to in sub-clause 27.13 (Confidentiality), disclose to any other person for orders any information which is secret or instructions in respect confidential to the business or affairs of any goods Target Company or services any Purchaser Group Company or use any such information to the detriment of the business of any Target Company or any Purchaser Group Company for so long as that information remains secret or confidential; or
(h) for a period of five years following Completion, in relation to a business which is competitive with those supplied the Restricted Business (i) use the Filtronic name nor use any trade or business name or distinctive xxxx, style or logo used exclusively by or in the Wireless Infrastructure Business or anything intended or likely to be confused with it or (ii) permit any Group Company third party to use the Filtronic name, and the Vendor shall use its best endeavours to prevent the use of the Filtronic name by a third party in connection with whom any Group Company has transacted the Restricted Business during such five year period.
25.2 Each undertaking contained in clause 25.1 shall be construed as a supplier separate and independent undertaking and while the restrictions set out in Germany and/or this clause are considered by the parties to be reasonable in all the United Kingdom during circumstances it is agreed that if any one or more of such restrictions shall, either taken by itself or themselves together, be adjudged to go beyond what is reasonable in all the period circumstances for the protection of 12 months immediately prior to Completionthe Purchaser’s legitimate interests but would be adjudged reasonable if any particular restriction or restrictions were deleted or any part or parts of the wording thereof were deleted, restricted or limited in any particular manner (including without limitation any reduction in their duration or geographical scope) then the said restrictions shall apply with such deletions, restrictions or limitation as the case may be.
8.2 25.3 The Vendor agrees that, having regard to the facts and matters set out above and having taken professional advice, the restrictions contained in this clause 25 are reasonable and necessary for the protection of the legitimate business interests of the Purchaser.
25.4 Nothing in clause 8.1 25.1 shall prevent or restrict the Seller Vendor or any member of its subsidiary undertakings from:the Filtronic Group from:-
(a) carrying owning less than 3% of any class of the issued share capital of a company whose shares are listed on a recognised investment exchange or being engaged overseas investment exchange (as such terms are defined in or economically, interested in any business which, at Sections 285 and 313 of the date of this agreement, it currently carries on or is engaged in or economically interested in or any reasonable extension or development thereof outside the United Kingdom Financial Services and GermanyMarkets Act 2000);
(b) being the holder of shares (conferring not more than five per cent. of the votes which would normally be cast at a general meeting of that company) engaged, concerned or debentures of a company which is engaged interested in any business referred which it carried on prior to in clause 8.1(athe date of this Agreement (other than the Wireless Infrastructure Business following completion of the Pre-Completion Restructuring);
(c) acquiring any interest in any entity which carries on a Restricted Business provided that the whole sole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach main purpose of the undertaking contained acquisition was not to acquire or carry on or participate in clause 8.1 (a Restricted Business and that the “Competitive Operations”), as part turnover attributable to such Restricted Business constitutes less than 10% of a larger acquisition or series of related acquisitions provided that:
(i) the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. entity acquired, in each case as shown in the then most recent published accounts of the gross turnover of the company, group of companies or business entity acquired.
8.3 The Seller agrees that the undertakings contained in this clause 8 are reasonable and are entered into for the purpose of protecting the goodwill of the business of each member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit of any other person directly or indirectly represent itself to be connected with or interested in the business of the Group.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of the Buyer and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion of the courts) be obtained.
Appears in 1 contract
Samples: Share Purchase Agreement (Powerwave Technologies Inc)
PROTECTION OF GOODWILL. 8.1 The Seller 9.1 Xxxxxx hereby undertakes to procure that (except as otherwise agreed in writing with RoweCom) no member of the Buyer) neither the Seller not any of its subsidiary undertakings from time to time Xxxxxx Group will either solely or jointly with any other person (either on its own account or as the agent of any other person):person):-
(a) for a period of 2 five years (except in the case of the French Business in which case the relevant period shall be three years) from Completion carry on or be engaged or concerned or (except as the holder of shares in a listed company (other than RoweCom) which confer not more than five two per cent. of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the type of business carried on by any member of the Group at Completion in the United Kingdom and GermanyRelevant Business;
(b) for a period of 2 five years (except in the case of the French Business in which case the relevant period shall be three years) from Completion solicit or accept the custom of any person in respect of goods or services competitive with those manufactured or supplied by any member of the Group in respect of the Relevant Business during the period of 12 months immediately prior to Completion, such person having been a customer of the Group in respect of such goods or services during such period;
(c) for a period of five years (except in the case of the French Business in which case the relevant period shall be three years) from Completion induce, solicit or endeavour to entice to leave the service or employment or of any member of the Group, any person who during the period of 6 12 months prior to Completion was an employee of any member of the Group occupying a senior or managerial position and likely (in the opinion of the BuyerRoweCom) to be:be:-
(i) in possession of confidential information relating to; or
(ii) able to influence the customer relationships or connections of of, any member of the Group provided that this shall not restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group CompanyGroup; or
(iiid) for a period of two years from Completion, canvass, solicit, approach use the Trade Names or seek out any other name intended or cause likely to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company any person for orders or instructions in respect of any goods or services competitive confused with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom during the period of 12 months immediately prior to CompletionTrade Names.
8.2 Nothing in clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings from:
(a) carrying on or being engaged in or economically, interested in any business which, at the date of this agreement, it currently carries on or is engaged in or economically interested in or any reasonable extension or development thereof outside the United Kingdom and Germany;
(b) being the holder of shares (conferring not more than five per cent. of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:
(i) the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquired.
8.3 The Seller 9.2 Xxxxxx agrees that the undertakings contained in this clause 8 9 are reasonable and are entered into for the purpose of protecting the goodwill of the business of each member of the Group as carried out at Completionand that accordingly the benefit of the undertakings may be assigned by RoweCom and its successors in title without the consent of Xxxxxx.
8.4 The Seller 9.3 Each undertaking contained in this clause 9 is and shall be construed as separate and severable and if one or more of the undertakings is held to be against the public interest or unlawful or in any way an unreasonable restraint of trade or unenforceable in whole or in part for any reason the remaining undertakings or parts thereof, as appropriate, shall continue to bind Xxxxxx.
9.4 If any undertaking contained in this clause 9 shall be held to be void but would be valid if deleted in part or reduced in application, such undertaking shall apply with such deletion or modification as may be necessary to make it valid and enforceable. Without prejudice to the generality of the foregoing, such period (as the same may previously have been reduced by virtue of this clause 9.4) shall take effect as if reduced by six months until the resulting period shall be valid and enforceable.
9.5 No provision of this agreement, by virtue of which this agreement is subject to registration (if such be the case) under the Restrictive Trade Practices Act 1976 (unless this agreement is a non-notifiable agreement pursuant to section 27A of that Act), shall take effect until the day after particulars of this agreement have been furnished to the Director- General of Fair Trading pursuant to section 24 of that Act. For this purpose the expression "this agreement" includes any agreement or arrangement of which this agreement forms part and which is registrable or by virtue of which this agreement is registrable.
9.6 RoweCom hereby undertakes to the Buyer that at all times it will not (and will procure that none (except as otherwise agreed in writing with Xxxxxx) no member of its subsidiary undertakings will) the Group or the RoweCom Group will either itself solely or by an agent and jointly with any other person (either on its own account or by or in association with or for as the benefit agent of any other person) for a period of five years from Completion induce, solicit or endeavour to entice to leave the service or employment of any member of the Xxxxxx Group, any person directly who during the period of 12 months prior to Completion was an employee of any member of the Xxxxxx Group occupying a senior or indirectly represent itself to be connected with or interested managerial position likely (in the business opinion of RoweCom) to be:-
(a) in possession of confidential information relating to; or
(b) able to influence the customer relationships or connections of, any member of the Xxxxxx Group.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of the Buyer and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion of the courts) be obtained.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of the Subscription Business (Rowecom Inc)
PROTECTION OF GOODWILL. 8.1 The Seller hereby undertakes 16.1 As further consideration for the Buyer agreeing to procure that (except as otherwise agreed in writing purchase the Business and the Assets and with the Buyer) neither intent of securing to the Seller not any Buyer the full benefit and value of its subsidiary undertakings from time the goodwill and connections of the Business, the Sellers severally undertake to time will either solely or jointly with any other person (either on its own account or as the agent of any other person):Buyer that:-
(a) 16.1.1 for a period of 2 years not more than 24 months from Completion they will not and will procure that no other Restricted Person will in any capacity whatsoever directly or indirectly carry on or assist in carrying on or be engaged engaged, concerned or (except as interested in any activity or undertaking which is the holder of shares same as, or substantially similar to, the Business in a listed company which confer not more than five per cent. of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the type of business any geographic areas where Business is carried on by any member of the Group at Completion in the United Kingdom and Germany;Completion; and
(b) 16.1.2 for a period of 2 years 24 months from Completion inducethey will not and will procure that no other Restricted Person will for the purpose of any business supplying products or services similar to or capable of being used in substitution for any product or service supplied by the Business within the 24 months preceding Completion, solicit canvass, solicit, accept orders from or endeavour to entice to leave away from the service or employment or any member of the Group, Business any person who during the period of 6 months two years prior to Completion was an employee of any member has been a customer of the Group occupying a senior Sellers in connection with the Business or managerial position and likely (has purchased or agreed or offered to purchase goods from the Sellers in connection with the opinion of the Buyer) to be:Business or has employed its services; and
(i) in possession of confidential information relating to; or
(ii) able to influence the customer relationships or connections of any member of the Group provided that this shall not restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iii) 16.1.3 for a period of two years 24 months from Completion they will not and will procure that no other Restricted Person will do any act or thing likely to have the effect of causing any supplier of or other person in the habit of dealing with the Sellers in connection with the Business (either at the date of this Agreement or at Completion, canvass, solicit, approach or seek out or cause ) to be canvassedunable or unwilling to deal with the Buyer either at all or in part on the terms on which he had previously dealt with the Sellers or likely to have the effect of causing any person having a contract or arrangement with the Sellers in connection with the Business (either at the date of this Agreement or at Completion) to breach, solicited, approached terminate or sought out modify that contract or by arrangement or to exercise any right under it; and
16.1.4 for a period of 24 months from Completion they will not and will procure that no other means Restricted Person will solicit or endeavour to entice away from any Group Company the Buyer or employ, engage or contract for the services of any person for orders by the Sellers in relation to the Business at Completion or instructions in respect of at any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom time during the period of 12 six months immediately prior preceding Completion nor do any act or thing likely to Completion.have the effect of causing any Employee to terminate his employment or service agreement; and
8.2 Nothing 16.1.5 it will not and will procure that no other Restricted Person will at any time in clause 8.1 shall prevent connection with any business carried on by it or restrict the Seller otherwise howsoever use directly or indirectly or authorise any person to use directly or indirectly any of its subsidiary undertakings from:
(a) carrying on the Intellectual Property Rights including use as a trade maxx xf the names or being engaged in or economicallywords "Vislink", interested in any business which, at the date of this agreement, it currently carries on or is engaged in or economically interested in or any reasonable extension or development thereof outside the United Kingdom and Germany;
(b) being the holder of shares (conferring not more than five per cent. of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 (the “Competitive Operations”), including as part of a larger acquisition corporate name, trade name or series otherwise, save for a period of related acquisitions provided that:
(i) 24 months from Completion during which time the Competitive Operations comprise a minor Sellers and any member of the Sellers' Group shall be entitled to use the name Vislink and any other trade marks that from part of the business Intellectual Property Rights while they rebrand their businesses, including on any remaining stationery/marketing materials, packaging materials or similar for any purpose including (without limitation) accounting, annual reporting, statutory reporting, and for any purpose required by the United Kingdom Listing Authority or the business of such companyLondon Stock Exchange plc, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of without breaching this clause 8.2(c) a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquiredClause 16.1.5.
8.3 The Seller agrees that the undertakings contained in this clause 8 are reasonable and are entered into for the purpose of protecting the goodwill of the business of each member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit of any other person directly or indirectly represent itself to be connected with or interested in the business of the Group.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of the Buyer and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion of the courts) be obtained.
Appears in 1 contract
PROTECTION OF GOODWILL. 8.1 5.1 The Seller Sellers hereby undertakes undertake to procure that (except as otherwise agreed in writing with the Buyer) neither the Seller they will not any of its subsidiary undertakings from time to time (and their respective connected persons will not) either directly or indirectly and either solely or jointly with any other person (either on its their own account or as the agent of any other person):) and in any capacity whatsoever:
(a) subject to clause 5.2, for a period of 2 three years from Completion carry on or be engaged or concerned or (except as the holder of shares in a listed company which confer not more than five per cent. of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the type of business carried on by any member of the Group Company at Completion in any of the United Kingdom and Germanycountries in which the business was then carried on;
(b) for a period of 2 three years from Completion solicit or accept the custom of any person in respect of goods or services competitive with those manufactured or supplied by the Company during the period of 12 months prior to Completion, such person having been a customer of the Company in respect of such goods or services during such period;
(c) for a period of three years from Completion induce, solicit or endeavour to entice to leave the service or employment or any member of the GroupCompany, any person who during the period of 6 12 months prior to Completion was an employee of any member of the Group Company occupying a senior or managerial position and likely (in the opinion of the Buyer) to be:
(i) in possession of confidential information relating to; or
(ii) able to influence the customer relationships or connections of any member of the Group provided that this shall not restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iiid) for a period of two years from Completion, canvass, solicit, approach use any trade or seek out domain name (including the expressions "EWST" and "EW Simulation Technology") or cause to be canvassed, solicited, approached or sought out or e-mail address used by the Company at any other means endeavour to entice away from any Group Company any person for orders or instructions in respect of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom time during the period of 12 months three years immediately prior to Completion.
8.2 Nothing in clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings from:
(a) carrying on or being engaged in or economically, interested in any business which, at preceding the date of this agreement, it currently carries on or is engaged in or economically interested in agreement or any reasonable extension other name intended or development thereof outside the United Kingdom and Germany;likely to be confused with any such trade or domain name or e-mail address.
(b) being the holder 5.2 For a period of shares (conferring six months from Completion, Xx. Xxxxxxx shall be permitted to hold not more than five 60 per cent. of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole or any part of a business which, or the issued share capital of a EWST Australia Pty Limited, provided such company or group of companies whose business or a part of whose businessshall only perform the services that it is currently performing, includes operations the carrying on details of which would otherwise amount to a breach of are set out in the undertaking contained in clause 8.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:
(i) the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquiredDisclosure Letter.
8.3 5.3 The Seller agrees Sellers agree that the undertakings contained in this clause 8 5 are reasonable and are entered into for the purpose of protecting the goodwill of the business of each member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer Company and that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for accordingly the benefit of any other person directly or indirectly represent itself to the undertakings may be connected with or interested in the business of the Group.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of assigned by the Buyer and its successors in title without the consent of any Group Company of the Sellers.
5.4 Each undertaking contained in this clause 5 is and that injunctive relief (shall be construed as separate and severable and if one or more of the undertakings is held to be against the public interest or unlawful or in addition any way an unreasonable restraint of trade or unenforceable in whole or in part for any reason the remaining undertakings or parts thereof, as appropriate, shall continue to bind the Sellers.
5.5 If any other equitable remedies) undertaking contained in this clause 5 shall be held to be void but would be valid if deleted in part or reduced in application, such undertaking shall apply with such deletion or modification as may (subject be necessary to make it valid and enforceable. Without prejudice to the discretion generality of the courtsforegoing, such period (as the same may previously have been reduced by virtue of this clause 5.5) shall take effect as if reduced by six months until the resulting period shall be obtainedvalid and enforceable.
Appears in 1 contract
Samples: Share Purchase Agreement (Herley Industries Inc /New)
PROTECTION OF GOODWILL. 8.1 The In consideration of the Buyer entering into the sale and purchase of the Business and Assets, the Seller hereby undertakes to procure that (except as otherwise agreed in writing and with the Buyer) neither Buyer that no member of the Seller not any of its subsidiary undertakings from time to time will Seller's Group shall either directly or indirectly and either solely or jointly with any other person (either on its own account or as the agent of any other person):
(a) for a and in any capacity whatsoever: during the period of 2 three years from Completion Completion, carry on or be engaged engaged, concerned or interested (except save as the holder of shares or debentures in a listed company which confer not more than five three per cent. of the votes which can generally could be cast at a general meeting of the company) interested directly in the custom chemical synthesis business and related analytical services business within the Restricted Territory; or indirectly in during the period of eighteen months from Completion, canvass or solicit orders from any person who was a business which competes with the type of business carried on by any member customer or supplier of the Group Business at Completion in any time within the United Kingdom and Germany;
(b) for a period of 2 years six months prior to Completion for the provision of the Restricted Services; during the period of eighteen months from Completion induce, solicit or endeavour to entice to leave solicit from the service Buyer any officer, manager or employment other employee who was either at Completion or any member of the Group, any person who during the period of 6 six months prior to Completion was an employee of any member engaged primarily in the Business rather than another part of the Seller's Group occupying whether or not such person would commit a senior breach of his contract of employment by reason of leaving service; or managerial position and use any trade or domain name (including the expressions, "CSS" or "Quchem") or e-mail address used by the Business at any time during the two months immediately preceding the date of this agreement or any other name intended or likely (in the opinion to be confused with any such trade or domain name or e-mail address. In consideration of the Buyer) Buyer entering into this agreement, the Seller undertakes to be:
(i) in possession of confidential information relating to; or
(ii) able to influence and with the customer relationships or connections of any member of the Group provided Buyer that this it shall not restrict any and shall procure that no member of the Seller’s 's Group from advertising shall: save as required by law or otherwise taking steps the rules of any governmental or regulatory organisation, use or reveal to recruit (and/or subsequently employing) any person which is any of the trade secrets, secret or are not specifically aimed at a particular employee confidential operations, processes or group of employees of any Group Company; or
(iii) for a period of two years from Completion, canvass, solicit, approach dealings or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour confidential information relating primarily and directly to entice away from any Group Company any person for orders or instructions the Business including (without limitation) customer lists and names, sales targets and statistics, market share statistics, surveys and reports and pricing information relating to sales and purchases in respect of the Business until such time as the same falls into the public domain otherwise than by reason of a breach of this undertaking; or attempt or knowingly assist or procure any goods or services competitive with those supplied other person to do any of the foregoing things. The restrictions contained in this clause 13 are considered reasonable by any Group Company the parties hereto and with whom any Group Company has transacted as a supplier in Germany and/or the Seller acknowledges that, in the United Kingdom during light of the total price paid under this agreement and the manner of computation thereof, the nature of the Business and all other relevant matters, the provisions of this clause 13 are considered reasonably necessary for the protection of the interests of the Buyer. In the event that any restriction in this clause 13 shall be found to be unenforceable but would be enforceable if some part thereof were deleted or the area of operation or the period of 12 months immediately prior application reduced, such restriction shall apply with such modification as may be necessary to Completion.
8.2 Nothing in clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings from:
(a) carrying on or being engaged in or economically, interested in any business which, at the date of this agreement, make it currently carries on or is engaged in or economically interested in or any reasonable extension or development thereof outside the United Kingdom legal and Germany;
(b) being the holder of shares (conferring not more than five per centenforceable. of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the Each undertaking contained in clause 8.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:
(i) the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business 13 shall be part construed as a separate undertaking and if one or more of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquired.
8.3 The Seller agrees that the undertakings contained in this clause 8 are reasonable and are entered into for 13 is held to be against the purpose public interest or unlawful or in any way an unreasonable restraint of protecting trade the goodwill of the business of each remaining undertakings shall continue to bind any member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit of any other person directly or indirectly represent itself to be connected with or interested in the business of the Seller's Group.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of the Buyer and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion of the courts) be obtained.
Appears in 1 contract
PROTECTION OF GOODWILL. 8.1 The In consideration of the Buyer entering into the sale and purchase of the Shares, the Seller hereby undertakes to procure that (except as otherwise agreed in writing and with the Buyer) neither Buyer that no member of the Seller not any of its subsidiary undertakings from time to time will Seller's Group shall either directly or indirectly and either solely or jointly with any other person (either on its own account or as the agent of any other person):
(a) for a and in any capacity whatsoever: during the period of 2 three years from Completion Completion, carry on or be engaged engaged, concerned or interested (except save as the holder of shares or debentures in a listed company which confer not more than five three per cent. of the votes which can generally could be cast at a general meeting of the company) interested directly in the custom chemical synthesis business and related analytical services business within the Restricted Territory; or indirectly in during the period of eighteen months from Completion, canvass or solicit orders from any person who was a business which competes with the type of business carried on by any member customer or supplier of the Group Business or Xxxxxx at Completion in any time within the United Kingdom and Germany;
(b) for a period of 2 years six months prior to Completion for the provision of the Restricted Services; or during the period of eighteen months from Completion induce, solicit or endeavour to entice to leave solicit from the service Buyer any officer, manager or employment other employee who was either at Completion or any member of the Group, any person who during the period of 6 six months prior to Completion was an employee of any member engaged primarily in the Business rather than another part of the Seller's Group occupying whether or not such person would commit a senior breach of his contract of employment by reason of leaving service; or managerial position and use any trade or domain name (including the expressions, "CSS" or "Xxxxxx") or e-mail address used by Xxxxxx at any time during the two months immediately preceding the date of this agreement or any other name intended or likely (in the opinion to be confused with any such trade or domain name or e-mail address. In consideration of the Buyer) Buyer entering into this agreement, the Seller undertakes to be:
(i) in possession of confidential information relating to; or
(ii) able to influence and with the customer relationships or connections of any member of the Group provided Buyer that this it shall not restrict any and shall procure that no member of the Seller’s 's Group from advertising shall: save as required by law or otherwise taking steps the rules of any governmental or regulatory organisation, use or reveal to recruit (and/or subsequently employing) any person which is any of the trade secrets, secret or are not specifically aimed at a particular employee confidential operations, processes or group of employees of any Group Company; or
(iii) for a period of two years from Completion, canvass, solicit, approach dealings or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour confidential information relating primarily and directly to entice away from any Group Company any person for orders or instructions the Business including (without limitation) customer lists and names, sales targets and statistics, market share statistics, surveys and reports and pricing information relating to sales and purchases in respect of the Business until such time as the same falls into the public domain otherwise than by reason of a breach of this undertaking; or attempt or knowingly assist or procure any goods or services competitive with those supplied other person to do any of the foregoing things. The restrictions contained in this clause 7 are considered reasonable by any Group Company the parties hereto and with whom any Group Company has transacted as a supplier in Germany and/or the Seller acknowledges that, in the United Kingdom during light of the total price paid under this agreement and the manner of computation thereof, the nature of the Business and all other relevant matters, the provisions of this clause 7 are considered reasonably necessary for the protection of the interests of the Buyer. In the event that any restriction in this clause 7 shall be found to be unenforceable but would be enforceable if some part thereof were deleted or the area of operation or the period of 12 months immediately prior application reduced, such restriction shall apply with such modification as may be necessary to Completion.
8.2 Nothing in clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings from:
(a) carrying on or being engaged in or economically, interested in any business which, at the date of this agreement, make it currently carries on or is engaged in or economically interested in or any reasonable extension or development thereof outside the United Kingdom legal and Germany;
(b) being the holder of shares (conferring not more than five per centenforceable. of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the Each undertaking contained in clause 8.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:
(i) the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business 7 shall be part construed as a separate undertaking and if one or more of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquired.
8.3 The Seller agrees that the undertakings contained in this clause 8 are reasonable and are entered into for 7 is held to be against the purpose public interest or unlawful or in any way an unreasonable restraint of protecting trade the goodwill of the business of each remaining undertakings shall continue to bind any member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit of any other person directly or indirectly represent itself to be connected with or interested in the business of the Seller's Group.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of the Buyer and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion of the courts) be obtained.
Appears in 1 contract
PROTECTION OF GOODWILL. 8.1 The Seller Armor hereby undertakes to the Buyer for itself and on behalf of the UK Buyer and the US Buyer to procure that (except as otherwise agreed in writing with the Buyer) neither no member of the Seller not any of its subsidiary undertakings from time to time Sellers' Group will either solely or jointly with any other person (either on its own account or as the agent of any other person):) and directly or indirectly:
(aA) for a period of 2 years from Completion the Restricted Period in the Restricted Territories carry on or be engaged or (except as the holder of shares in a listed company which confer confers not more than five per cent. of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which provides close quarter defence (CQD) training, remote site security services, man-guarding services, security consultancy services, humanitarian mine clearing services, investigation services, security training, lethal fire arm training, driver training, close protection training or dog training or which otherwise competes with the type of any business carried on by any member of the a Group Company at Completion in the United Kingdom and Germany;(each "A PROTECTED BUSINESS"); and/or
(bB) for a period of 2 three years from Completion induce, solicit or endeavour to entice to leave the service or employment or of any member of the Group, any person who during the period of 6 months prior to at Completion was an employee of any member of the Group occupying a senior or managerial position and likely (in the reasonable opinion of the Buyer) to be:
(i) : 1 in possession of confidential information ArmorGroup Confidential Information relating to; or
(ii) able to influence the customer relationships or connections of any member of the Group Group; or provided that this shall not restrict any member of the Seller’s Sellers' Group from advertising or otherwise taking steps to recruit (and/or from subsequently employing) any person which is or are not specifically aimed at or intended to recruit a particular employee or group of employees of any Group CompanyCompany save that if any of the Key Employees responds to such advertisement or recruitment process Armor will not, and will procure that no member of the Sellers' Group will, employ such person; orand/or
(iiiC) for a period of two three years from Completion, canvass, solicit, approach Completion prevent or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company restrict any person for orders or instructions who at any time in respect of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom during the period of 12 months immediately prior to Completion.Completion has been a client or customer of a Protected Business from continuing such client or customer relationship with the Group or endeavour to supply services to any such client or customer in competition with any Protected Business; and/or
8.2 Nothing in clause 8.1 shall (D) for a period of three years from Completion prevent or restrict any person firm or company (other than a member of the Seller Sellers' Group) which at any time in the period of 12 months prior to Completion has been a supplier of goods or services in connection with any Protected Business from supplying such goods or services to any member of the Group, where the cessation or restriction of such supply will or could reasonably be expected to have a materially adverse effect on or cause material loss to any member of the Group; and/or
(E) at any time after Completion use any of the names "ArmorGroup", "DSL", "Defense Systems", "ITI", "International Training", "Parvus", "Mine Action", "APS", "Alarm Protection Services", "Site Logistic", "Vulcano", "Special Clearance Services" or any of its subsidiary undertakings from:
name similar thereto or likely to be confused therewith, other than the name "Armor" or "Armour" (a) carrying on whether alone or being engaged in or economically, interested in conjunction with any business which, at the date of this agreement, other name provided that it currently carries on or is engaged in or economically interested in or any reasonable extension or development thereof outside the United Kingdom and Germany;
(b) being the holder of shares (conferring not more than five per cent. of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 (the “Competitive Operations”), used as part of a larger acquisition the name "ArmorGroup" or series "ArmorGroup"), nor at any time after the expiry of related acquisitions provided that:
(i) six months from Completion use the Competitive Operations comprise a minor part of name "CDR" or "USDS" or any name similar thereto or likely to confused therewith. for the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose purposes of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquired.
8.3 The Seller agrees that the undertakings contained in this clause 8 are reasonable and are entered into for the purpose of protecting the goodwill of the business of each member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit of any other person directly or indirectly represent itself to be connected with or interested in the business of the Group.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of the Buyer and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion of the courts) be obtained.8:-
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Armorgroup Services (Armor Holdings Inc)
PROTECTION OF GOODWILL. 8.1 10.1 The Seller hereby undertakes to the Buyer (for itself and as trustee for each member of the Group) that it will procure that (except as otherwise agreed in writing with no member of the Buyer) neither the Seller not any of its subsidiary undertakings from time to time will either solely or jointly with any other person (either on its own account or as the agent of any other person):Seller’s Group will:
(a) for a period of 2 five years from Completion carry on on, or be engaged a shareholder (directly or indirectly) in (except as the holder of shares in a listed company which confer not more than five per cent. cent of any class of securities which are listed or dealt in on a recognised securities exchange), or be a consultant to, any business within the Sultanate of Oman competing with any of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the type of business businesses carried on by the Group at Completion;
(b) during the period of five years from Completion solicit the custom of any person in the Sultanate of Oman in respect of goods or services competitive with those supplied by the Group prior to Completion, such other person (or their agents) having been a client or customer of the Group in the Sultanate of Oman in respect of such goods or services during the period of six months prior to Completion;
(c) during the period of five years from Completion solicit the services of, or endeavour to entice away from the Group any director, employee or consultant of the Group (other than Xxxxx Xxxxx) who at Completion or at any time during the period of six months prior to Completion occupied a senior or managerial position in relation to the Company or any member of the Group at Completion in the United Kingdom and Germany;
(b) for a period of 2 years from Completion induce, solicit or endeavour to entice to leave the service or employment or any member of the Group, any person and/or who during the period of 6 months prior to Completion was an employee of any member of the Group occupying a senior or managerial position and likely (in the opinion of the BuyerCompany) to be:
(i) in possession of confidential information relating to; or
(ii) able to influence the customer relationships or connections of of, any member of the Group provided that this shall (whether or not restrict such person would commit any breach of his contract of employment or engagement by reason of leaving the service of such company); nor
(d) use any trade or domain name (including the expressions “TOCO” and “The Oman Construction Company”) or logo or email address used by any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) at any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iii) for a period of time during the two years from Completion, canvass, solicit, approach or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company any person for orders or instructions in respect of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom during the period of 12 months immediately prior to Completion.
8.2 Nothing in clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings from:
(a) carrying on or being engaged in or economically, interested in any business which, at preceding the date of this agreement, it currently carries on or is engaged in or economically interested in agreement or any reasonable extension other name intended or development thereof outside likely to be confused with any such trade or domain name or e-mail address (excluding the United Kingdom name “Willbros” and Germany;
(b) being any trade or domain name or logo including the holder of shares (conferring not more than five per cent. of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 (the name “Competitive OperationsWillbros”), as part of a larger acquisition or series of related acquisitions provided that:
(i) the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquired.
8.3 10.2 The Seller agrees that the undertakings contained in this clause 8 10 are reasonable and are entered into for the purpose of protecting the goodwill and confidential knowhow of the business of each member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer and that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for accordingly the benefit of any other person directly or indirectly represent itself to the undertakings may be connected with or interested in the business of the Group.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of assigned by the Buyer and its successors in title without the consent of the Seller.
10.3 Each undertaking contained in this clause 10 is and shall be construed as separate and severable and if one or more of the undertakings is held to be against the public interest or unlawful or in any Group Company way an unreasonable restraint of trade or unenforceable in whole or in part for any reason the remaining undertakings or parts thereof, as appropriate, shall continue to bind the Seller.
10.4 If any undertaking contained in this clause 10 shall be held to be void but would be valid if deleted in part or reduced in application, such undertaking shall apply with such deletion 18 or modification as may be necessary to make it valid and that injunctive relief (in addition to any other equitable remedies) may (subject enforceable. Without prejudice to the discretion generality of the courtsforegoing, in such circumstances, any relevant period of time (as the same may previously have been reduced by virtue of this clause 10.4) shall take effect as if reduced by successive six month periods until the resulting period shall be obtainedvalid and enforceable.
Appears in 1 contract
Samples: Share Purchase Agreement
PROTECTION OF GOODWILL. 8.1 The Seller hereby 7.1 Each of the Sellers undertakes to procure the Buyer that (except as otherwise agreed in writing with unless he or she has obtained the prior written consent of the Buyer or another member of the Buyer) neither ’s Group or their respective directors, employees or agents or save as would be inconsistent with their obligations under the Seller service agreements:-
7.1.1 (in the case only of the Sellers whose names are not any of its subsidiary undertakings from time to time will either solely or jointly marked with any other person (either on its own account or as the agent of any other person):
(aan asterisk in Schedule 1 only) for a period of 2 years 24 months from Completion carry on he will not knowingly, for the purpose of any business supplying products or be engaged services similar to or (except as capable of being used in substitution for any product or service supplied by the holder of shares in a listed company which confer not more than five per cent. of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the type of business carried on by any member of the Group at Completion in the United Kingdom and Germany;
(b) for a period of 2 years from Completion induceCompany, canvass, solicit or endeavour to entice to leave away from the service or employment or any member of the Group, Company any person who during the period of 6 months prior to Completion was an employee of any member has been a customer of the Group occupying Company or has purchased or agreed or offered to purchase goods from the Company or has employed its services or who has been canvassed by the Company (otherwise than by general advertising) with a senior or managerial position and likely (in the opinion view to becoming a customer of the Buyer) to be:
(i) in possession of confidential information relating to; or
(ii) able to influence the customer relationships or connections of any member of the Group provided that this shall not restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; orand
(iii) 7.1.2 for a period of two years 24 months from Completion, canvass, solicit, approach Completion he will not solicit or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from the Company, employ or offer employment to any Group employee of the Company any person for orders or instructions in respect of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom during the period of 12 months immediately prior to Completion.
8.2 Nothing in clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings from:
(a) carrying on or being engaged in or economically, interested in any business which, who is at the date of this agreementagreement and/or at Completion an Employee nor do any act or thing likely to have the effect of causing any Employee to terminate his employment with the Company whether or not such employee would thereby breach his contract of employment; and
7.1.3 he will not at any time in connection with any business carried on by him or otherwise howsoever use directly or indirectly or authorise any person to use directly or indirectly any of the Intellectual Property rights including the names or words “WXX.XX.XX”, it currently carries on or is engaged in or economically interested in “Spring”, “Cinemasonline”, “UK Theatres Online” or any reasonable extension other trading name used by the Buyers’ Group or development thereof outside any names or words similar to or likely to be confused with them or use any distinctive mxxx, style or logo used by the United Kingdom and Germany;Company or any mxxx, style or logo similar to or likely to be confused with them in any manner which is likely to or may result in confusion between or other association with the business, goods, services or other activities of the Company including by using the name “UK Theatres Online “ as part of a corporate name, trade name or otherwise.
(b) being 7.2 Nothing in Clause 7.1 shall prevent the holder of shares (conferring Sellers from:-
7.2.1 owning not more than five three per cent. cent of any class of the votes which would normally be cast at a general meeting of that company) or debentures issued share capital of a company which is engaged dealt in on a recognised investment exchange (as defined in the Financial Services and Markets Act 2000); or
7.2.2 being engaged, concerned or interested in any business referred to in clause 8.1(a);which he is engaged, concerned or interested at the date hereof.
(c) acquiring 7.3 The Sellers have taken independent legal advice and acknowledge that they consider the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking undertakings contained in clause 8.1 (Clause 7.1 reasonable for the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:
(i) the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” proper protection of the business of the Company and further acknowledge that damages would not be an adequate remedy for breach of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquiredundertakings.
8.3 The Seller agrees that 7.4 Each of the undertakings contained in this clause 8 are reasonable Clause 7.1 is separate and are entered into for severable and shall be construed on that basis. In the purpose event that any of protecting the goodwill of the business of each member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary such undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit of any other person directly or indirectly represent itself is found to be connected void but would be valid if some part of it were deleted or if the period or extent of it were reduced such undertaking shall apply with or interested in the business of the Groupsuch modification as may be necessary to make it valid and effective.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of the Buyer and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion of the courts) be obtained.
Appears in 1 contract
PROTECTION OF GOODWILL. 8.1 The Seller hereby 15.1 To assure to the Purchaser the full benefit of the business and goodwill of the Group, each Vendor severally undertakes to procure that (except as otherwise agreed in writing with the Buyer) neither the Seller not any of its subsidiary undertakings from time to time will either solely or jointly with any other person (either on its own behalf that it shall not directly or indirectly (whether as principal, shareholder, partner, employee, agent or otherwise), whether on its or their own account or as the agent in conjunction with or on behalf of any other person):, do any of the following things:
(a) for a period of 2 years from Completion during the Restricted Period carry on or be engaged engaged, concerned or interested in (except as the holder of shares in a company whose shares are listed company on a recognised investment exchange or overseas investment exchange (as such terms are defined in Sections 285 and 313, Financial Services and Markets Act 2000) which confer not more than five per cent. 3% of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the type of business carried on by any member of the Group at Completion in the United Kingdom and Germany;
(b) for a period of 2 years from Completion induce, solicit or endeavour to entice to leave the service or employment or any member of the Group, any person who during the period of 6 months prior to Completion was an employee of any member of the Group occupying a senior or managerial position and likely (in the opinion of the Buyer) to be:
(i) in possession of confidential information relating to; or
(ii) able to influence the customer relationships or connections of any member of the Group provided that this shall not restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iii) for a period of two years from Completion, canvass, solicit, approach or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company any person for orders or instructions in respect of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom during the period of 12 months immediately prior to Completion.
8.2 Nothing in clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings from:
(a) carrying on or being engaged in or economically, interested in any business which, at the date of this agreement, it currently carries on or is engaged in or economically interested in or any reasonable extension or development thereof outside the United Kingdom and Germany;
(b) being the holder of shares (conferring not more than five per cent. of the votes which would could normally be cast at a general meeting of that company), any business of any Group Company which competes with any part of the Restricted Business within the Territory; or
(b) during the Restricted Period canvass or solicit or seek to entice away the custom of any Client for the purposes of providing Restricted Business within the Territory; or
(c) during the Restricted Period accept orders for the provision of Restricted Business within the Territory in respect of any Client; or
(d) during the Restricted Period endeavour to entice away, hire, engage, employ from any Group Company or encourage to terminate his employment with any Group Company (whether or not such termination would be a breach of his contract of employment) any Senior Employee.
15.2 The Purchaser undertakes on its own behalf that it shall not, and it shall procure that no Group Company nor any Purchaser Group Company shall, directly or indirectly (whether as principal, shareholder, partner, employee, agent or otherwise), whether on its or their own account or in conjunction with or on behalf of any other person, during the Restricted Period endeavour to entice away from any Vendor Group Company or encourage to terminate his employment with any Vendor Group Company (whether or not such termination would be a breach of his contract of employment) any Vendor Employee.
15.3 Each undertaking contained in this clause 15 (Protection of goodwill) shall be construed as a separate and independent undertaking and, while the restrictions set out in this clause are considered by the parties to be reasonable in all the circumstances, it is agreed that if any one or more of such restrictions shall, either taken by itself or themselves together, be adjudged to go beyond what is reasonable in all the circumstances for the protection of the Purchaser's legitimate interests (as applicable) or debentures the Vendors' legitimate interested (as applicable) but would be adjudged reasonable if any particular restriction or restrictions were deleted or any part or parts of a company the wording thereof were deleted, restricted or limited in any particular manner (including without limitation any reduction in their duration or geographical scope) then the said restrictions shall apply with such deletions, restrictions or limitation as the case may be.
15.4 Each of the Vendors agree that, having regard to the facts and matters set out above and having taken professional advice, the restrictions contained in this clause 15 (Protection of goodwill) are reasonable and necessary for the protection of the legitimate business interests of the Purchaser.
15.5 The Purchaser agrees that, having regard to the facts and matters set out above and having taken professional advice, the restrictions contained in clause 15.2 (Protection of goodwill) are reasonable and necessary for the protection of the legitimate business interests of the Vendors.
15.6 Nothing in this clause 15 (Protection of goodwill) shall prevent or restrict the Vendors' Group from its involvement with the TPaola Project in accordance with the terms of the applicable contractual agreements in the Data Room (as set out in the definition of the TPaola Project).
15.7 Within four months after Completion, the Purchaser shall procure that no Group Company uses or displays in any manner whatsoever on any Group Company's digital assets (including websites, e-mail addresses or domain names or any new materials, documents or promotional materials) any name, mark, trade or service name or logo used or held on Completion by any member of the Vendor's Group ("QinetiQ Names and Marks") or any name, mark, trade or service name or logo which is engaged similar to, or is likely to be confused or associated with any QinetiQ Names and Marks.
15.8 From Completion, the Purchaser shall procure that no Group Company represents that the Vendor or any other member of the Vendor's Group retains any connection with the Group Companies (except that they may make accurate statements in relation to the historical affiliation of the Group Companies to the Vendor’s Group).
15.9 Subject to clause 15.5, within six months after Completion, the Purchaser shall procure that no Group Company uses or displays in any manner whatsoever on any Group Company's physical assets (including existing materials, stationery, documents, signs or business referred cards) any QinetiQ Names and Marks or any name, mark, trade or service name or logo which is similar to, or is likely to be confused or associated with any QinetiQ Names and Marks.
15.10 Notwithstanding clauses 15.5 and 15.9, each of the Vendors hereby acknowledges and agrees that neither the Purchaser nor any of the Group Companies shall be obliged to remove or destroy any QinetiQ Names and Marks:
(a) from any executed or archived policies, agreements or terms and conditions, or copies thereof, in clause 8.1(a)existence prior to the Completion Date;
(b) from any internal or non-client-facing documents in existence prior to the Completion Date that are used for internal purposes only;
(c) acquiring from any other assets and/or materials owned or used by, or on behalf of the whole Group Companies (including any business stationary, displays or marketing materials), in existence prior to the Completion Date and which the Group Companies no longer have control or possession of at the Completion Date (including where a request has been made to a third party for such removal or obliteration and such request has not been actioned);
(d) where such use is trivial or incidental, or where removal or obliteration of the relevant QinetiQ Names and Marks is impracticable and/or disproportionate.
15.11 The Purchaser agrees that neither it nor any Group Company:
(a) has any rights in or to the QinetiQ Names and Marks; and
(b) shall expressly or intentionally, do business as or represent themselves as any member of the Vendor's Group or any part of a business whichperson connected with the Vendor's Group.
15.12 As soon as reasonably practicable following Completion (and in any event within 15 Business Days thereof), or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach Purchaser shall procure an extraordinary shareholders' meeting of the undertaking contained Company in clause 8.1 (presence of the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:
notary that approves (i) the Competitive Operations comprise a minor part change of the business corporate name of the Company so as not to include the word "QinetiQ" or the business of such companyany name which is similar to, group of companies or businesses acquired is likely to be confused or in which the Seller or its relevant subsidiary undertaking has acquired an interest; and
associated with, any QinetiQ Names and Marks and (ii) the Seller or its relevant subsidiary undertaking disposes corresponding amendment of the Competitive Operations to a third party outside articles of association of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquiredCompany.
8.3 The Seller agrees that the undertakings contained in this clause 8 are reasonable and are entered into for the purpose of protecting the goodwill of the business of each member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit of any other person directly or indirectly represent itself to be connected with or interested in the business of the Group.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of the Buyer and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion of the courts) be obtained.
Appears in 1 contract
PROTECTION OF GOODWILL. 8.1 12.1 The Seller hereby undertakes and the Covenantors recognise the paramount importance of the goodwill of the Group to procure the Buyers which is reflected in the consideration paid by the Buyers for the Shares. Accordingly, the Covenantors who have acquired and will hereafter continue to acquire detailed knowledge of the Business including Customers, suppliers of each Group Company and terms of business used by each Group Company is prepared to enter into the commitments contained in this clause to ensure that (except as otherwise agreed the Buyers' interest in writing with that goodwill is properly protected.
12.2 For the Buyer) neither the Seller not any of its subsidiary undertakings from time to time will either solely or jointly with any other person (either on its own account or as the agent of any other person):
(a) for a period of 2 years 24 months from Completion (for the purposes of this clause 12, the "Relevant Period"), the Covenantors will:
12.2.1 supply to the Buyers such information (other than any which is public knowledge) as any Buyer may reasonably require which relates to the Business and the Group; and
12.2.2 recommend and introduce the Buyers to Customers and to suppliers and Business connections of the Group.
12.3 The Covenantors jointly and severally undertake that they will not without the prior written consent of the Buyers during the Relevant Period operate, carry on or be engaged engaged, concerned, involved or (except as the holder of shares in a listed company which confer not more than five per cent. of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the type of business carried on by any member of the Restricted Activities in competition directly or indirectly with a Group at Completion Company within the Restricted Territory.
12.4 The Covenantors jointly and severally undertake that they will not without the prior written consent of the Buyers during the Relevant Period:
12.4.1 solicit or attempt to solicit from any Customer any orders, enquiries or business in respect of any of the products sold by a Group Company in the United Kingdom and Germanypreceding 12 months in the course of the Restricted Activities within the Restricted Territory;
12.4.2 either accept (bdirectly or indirectly) for or procure or attempt to procure the diversion away from a period Group Company and/or the Buyers of 2 years any orders, enquiries or business in respect of the Restricted Activities from Completion induceany Customer within the Restricted Territory;
12.4.3 procure or attempt to procure any supplier of a Group Company to cease supplying the Business or to unfavourably alter the terms upon which supplies are made, solicit or do or say anything which may lead any supplier of a Group Company to cease supplying the Business or to unfavourably alter the terms on which supplies are made;
12.4.4 procure or induce or endeavour to entice to leave the service procure or employment or induce any member of the Group, any person who during the period employees of 6 months prior to Completion was an employee of any member of the a Group occupying Company engaged in a senior or managerial position and likely (or who have had direct contact with Customers in the opinion course of their duties to cease working for a Group Company;
12.4.5 make a statement (written or oral) which could be considered harmful to the reputation of a Group Company;
12.4.6 employ or engage any person who held a senior or managerial position with a Group Company or who has had direct contact with Customers in the course of his duties working for a Group Company;
12.4.7 either alone or jointly with, through or as managers, advisers, consultants or agents for a person, directly or indirectly, use in connection with a business which competes, directly or indirectly, with the Business, any of the Buyer) to be:
(i) in possession of confidential information relating toIntellectual Property Rights; or
12.4.8 either alone or jointly with, through or as managers, advisers, consultants or agents for a person, directly or indirectly, use in connection with a business which competes, directly or indirectly, with the Business, a name including the word "Xxxxx" or the words "Xxxxx Leisure" or any combination of such word or words) which is intended or is likely to be confused with the Business or a trading name of a Group Company.
12.5 It is further agreed that the foregoing provisions of clauses 12.3 and 12.4 shall apply equally to and during such further period (iiif any) able to influence from the customer relationships or connections date of any member expiry of the Relevant Period until 12 months after the relevant Covenantor shall cease to be an employee of a Group provided Company and all remedies conferred by this clause 12 shall apply equally to any breach by the relevant Covenantor of this clause 12 in respect of such further period as aforesaid.
12.6 The Seller and the Covenantors jointly and severally undertake that this they will not (and so far as may be applicable, shall not restrict any member use all reasonable endeavours to procure that none of the Seller’s officers, employees, servants or agents of the Seller or the Group from advertising will) at any time after Completion without the Buyers' prior written consent:
12.6.1 make any public announcement regarding the Group, the Buyers or otherwise taking steps to recruit the transactions contemplated by this Agreement; or
12.6.2 disclose or use any Confidential Information (and/or subsequently employing) other than any person which is or are not specifically aimed at becomes public knowledge otherwise than as a particular employee or group of employees result of any Group Company; or
(iiibreach of this clause) for relating to a period of two years from Completion, canvass, solicit, approach or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company any person for orders or instructions in respect of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom during the period of 12 months immediately Business which they have acquired prior to Completion.
8.2 12.7 Save as specified in clause 12.8, the restrictions set out in clauses 12.3, 12.4 and 12.5 are to prevent the Covenantors from carrying out any of the activities therein prohibited on his own behalf or jointly with or as servant, agent, manager, employee, consultant, director or shareholder of any other person, firm, company or body.
12.8 Nothing in this clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings fromis to prevent:
(a) carrying on or being engaged in or economically, interested in any business which, at 12.8.1 Xxxxx Xxxxx from properly performing his duties under the date of this agreement, it currently carries on or is engaged in or economically interested in or any reasonable extension or development thereof outside the United Kingdom and Germany;Service Contract; or
(b) being the holder of shares (conferring not more than five per cent. 12.8.2 each Covenantor from holding for investment purposes up to 2% of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole or any part of a business which, or the issued share capital of a company whose shares are dealt in or group of companies whose business or quoted on a part of whose business, includes operations the carrying on of which would otherwise amount to a breach recognised Stock Exchange.
12.9 Each of the undertaking contained in clause 8.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:
(i) the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquired.
8.3 The Seller agrees that the undertakings commitments contained in this clause 8 are reasonable 12 gives rise to a separate, severable, independent and are entered into for the purpose of protecting the goodwill of the business of each member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit of any other person directly or indirectly represent itself to be connected with or interested in the business of the Group.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, separately enforceable obligation from the Seller and the Buyer agree that damages alone are likely not Covenantors independent of the other commitments.
12.10 The parties consider the duration, extent and application of the respective commitments contained in this clause 12 to be sufficient compensation reasonable as between themselves, in the public interest and that injunctive relief is reasonable and is likely to be essential to safeguard necessary for the protection of the legitimate interests of the Buyer Buyers and the Group. If, however, any such restriction is found by a Court or regulatory authority or agency of competent jurisdiction to be void or unreasonable or unenforceable but would be valid, reasonable and enforceable if certain words were deleted and/or the period thereof and/or the geographical area dealt with thereby was reduced, then the commitments will apply with those words deleted or such other modifications as may be necessary to make those commitments valid, reasonable and enforceable.
12.11 The Buyers may by written notice to any Covenantor vary by one or more stages the terms of any Group Company part of this clause 12 as it may apply to him by reducing (but not increasing) any one or more of:
12.11.1 the period during which and/or activities to which the commitments are to apply; and
12.11.2 the geographical area to which the commitments relate.
12.12 It is acknowledged and agreed by the Covenantors and (where appropriate) the Seller that damages may not be an adequate remedy for breach of any of the undertakings and covenants given by the Covenantors under this clause 12 and that injunctive relief accordingly, without fettering or limiting the Court's discretion in any way, equitable remedies, including that of injunction, might be available in respect of any such breach or threatened breach of the same Provided always that, without prejudice to the foregoing (but so that the following shall be an alternative and not in addition to any equitable or other equitable remediesrelief or award which may be granted by the Court) in the event of the breach of any of the provisions of this clause 12 by any Covenantor (and where capable of being remedied such breach has not been remedied within 28 days of the Buyers or the Company having required the relevant Covenantor to remedy the same) the Buyers may (subject to but shall not be obliged to) claim damages on the discretion basis that L1,059,999 (one million and fifty nine thousand nine hundred and ninety nine pounds sterling) of the courts) Consideration is paid for goodwill. As a result the loss suffered by the Buyers by virtue of any breach of the undertakings and covenants contained in this clause 12 will be obtaineda loss referrable to goodwill lost, damaged or likely to be lost or damaged.
Appears in 1 contract
PROTECTION OF GOODWILL. 8.1 The 15.1 In consideration of the Buyer entering into the sale and purchase of the Business and Assets and subject to the provisions of clause 15.3 below, the Seller hereby undertakes to procure that (except as otherwise agreed in writing and with the Buyer) neither Buyer that no member of the Seller not any of its subsidiary undertakings from time to time will Seller's Group shall either directly or indirectly and either solely or jointly with any other person (either on its own account or as the agent of any other person):) and in any capacity whatsoever:
(a) for a period of 2 three years from Completion (the "RESTRICTED PERIOD"), carry on or be engaged engaged, concerned or interested (except save as the holder of shares or debentures in a listed company which confer not more than five three per cent. of the votes which can generally could be cast at a general meeting of the company) interested directly or indirectly in a any business which competes would compete with the type Business within the Restricted Territory. For the avoidance of business carried doubt, the following activities shall not be competing with the Business for the purposes of clause 15.1:
(i) the carrying on by the Seller's Group of the Ivex Business;
(ii) the carrying on by the Seller's Group of the IVR Business; and
(iii) the sale or supply by any member of the Seller's Group at Completion of those pharmaceutical products in respect of which the United Kingdom and Germany;
(b) for a period of 2 years from Completion induce, solicit Buyer or endeavour Buyer's Group provide manufacturing or other services to entice to leave the service or employment or any member of the Group, any person who during the period of 6 months prior to Completion was an employee of any member of the Group occupying a senior or managerial position and likely (in the opinion of the Buyer) to be:
(i) in possession of confidential information relating to; or
(ii) able to influence the customer relationships or connections of any member of the Group provided that this shall not restrict any member of the Seller’s 's Group from advertising pursuant to the Supply Agreement (or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Companysuch agreement as shall replace the Supply Agreement as agreed between the parties hereto); or
(iiib) during the Restricted Period, canvass or solicit orders from any person who was a customer of the Business at any time within the period of six months prior to Completion for the provision of the Restricted Services; or
(c) for a period of two years from Completion, canvass, solicit, approach solicit or seek out entice away or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to solicit or entice away from the Buyer any Group Company Assumed Employees who are senior managers, directors or project managers and any key employees who would be treated as a "relevant employee" for the purposes of the Model Code contained in the Listing Rules, whether or not such person would commit any breach of his contract of employment or terms of engagement by reason of his leaving the service of the Buyer PROVIDED THAT this restriction will not apply to any advertisement for orders recruitment made available generally through any recruitment agency or instructions in respect advertisement available to the public;
(d) use any trade or domain name (including the expression, "PDMS") or e-mail address used by the Business at any time during the two months immediately preceding the date of this agreement or any goods other name intended or services competitive likely to be confused with those supplied by any Group Company such trade or domain name or e-mail address.
15.2 In consideration of the Buyer entering into this agreement, the Seller undertakes to and with whom any the Buyer that it shall not and shall procure that no member of the Seller's Group Company has transacted as a supplier in Germany and/or in the United Kingdom during the period of 12 months immediately prior to Completion.
8.2 Nothing in clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings fromshall:
(a) carrying on save as required by law or being engaged the rules of any governmental or regulatory organisation, use or reveal to any person any of the trade secrets, secret or confidential operations, processes or dealings or any other confidential information relating primarily and directly to the Business including (without limitation) customer lists and names, sales targets and statistics, market share statistics, surveys and reports and pricing information relating to sales and purchases in or economically, interested in any business which, at respect of the date Business until such time as the same falls into the public domain otherwise than by reason of a breach of this agreement, it currently carries on or is engaged in or economically interested in or any reasonable extension or development thereof outside the United Kingdom and Germany;undertaking; or
(b) being the holder of shares (conferring not more than five per cent. attempt or knowingly assist or procure any other person to do any of the votes which would normally be cast at a general meeting foregoing things.
15.3 The provisions of that company) clause 15.1 shall not prevent or debentures restrict any member of a company which is engaged in any business referred to in clause 8.1(a);
(c) the Seller's Group from acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 15.1 (the “Competitive Operations”"COMPETITIVE OPERATIONS"), as part of a larger acquisition or series of related acquisitions provided that:
PROVIDED THAT the relevant member of the Seller's Group shall within the following twelve months use their best endeavours to sell the Competitive Operations as soon as is reasonably practicable following such acquisition (iwhich shall, without limitation, include inviting the Buyer to make a competitive bid for the sale of the Competitive Operations) save that the relevant member of the Seller's Group shall not be obliged to sell the Competitive Operations if those Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking Seller's Group has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” 15.3(b), "MINOR PART" of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 the lower of ten per cent. cent of the gross turnover per annum or L5 million gross turnover per annum of the companyCompany, group of companies or business acquired.
8.3 15.4 The restrictions contained in this clause 15 are considered reasonable by the parties hereto and the Seller agrees acknowledges that, in the light of the total price paid under this agreement and the manner of computation thereof, the nature of the Business and all other relevant matters, the provisions of this clause 15 are considered reasonably necessary for the protection of the interests of the Buyer.
15.5 In the event that any restriction in this clause 15 shall be found to be unenforceable but would be enforceable if some part thereof were deleted or the area of operation or the period of application reduced, such restriction shall apply with such modification as may be necessary to make it legal and enforceable.
15.6 Each undertaking contained in this clause 15 shall be construed as a separate undertaking and if one or more of the undertakings contained in this clause 8 are reasonable and are entered into for 15 is held to be against the purpose public interest or unlawful or in any way an unreasonable restraint of protecting trade the goodwill of the business of each remaining undertakings shall continue to bind any member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit of any other person directly or indirectly represent itself to be connected with or interested in the business of the Seller's Group.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of the Buyer and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion of the courts) be obtained.
Appears in 1 contract
PROTECTION OF GOODWILL. 8.1 The Subject to clause 8.3, the Seller hereby undertakes to procure the Buyer that (except as otherwise agreed it will not, either alone or in writing conjunction with the Buyer) neither the Seller not any of its subsidiary undertakings from time to time will either solely or jointly with any other person (either on its own account or as the agent behalf of any other person):
(a) for a period of 2 years from Completion carry on or be engaged or (except as the holder of shares in a listed company which confer not more than five per cent. of the votes which can generally be cast at a general meeting of the company) interested , directly or indirectly in a business which competes with the type of business carried on by indirectly, at any member of the Group at Completion in the United Kingdom and Germany;
(b) for a period of 2 years from Completion induce, solicit or endeavour to entice to leave the service or employment or any member of the Group, any person who time during the period of 6 24 calendar months prior from the Completion Date:
8.1.1 Issue, or sponsor the issue of, or serve as an investment manager for, any exchange traded products which are listed or actively marketed in the Restricted Territory;
8.1.2 enter into, or endeavour to Completion was an employee enter into, any agreement or arrangement relating to the development, issue or management of any member of Bitcoin Instrument that the Group occupying a senior or managerial position and likely (Business has in the opinion of the Buyer) to be:
(i) in possession of confidential information relating to; or
(ii) able to influence the customer relationships or connections of any member of the Group provided that this shall not restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iii) for a period of two years from Completion, canvass, solicit, approach or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company any person for orders or instructions in respect of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom during the period of 12 months immediately prior to Completion.
8.2 Nothing in clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings from:
(a) carrying on or being engaged in or economically, interested in any business which, development at the date of this agreement, it currently carries on or is engaged in or economically interested in Agreement or any reasonable extension or development thereof outside the United Kingdom and Germany;
(b) being the holder of shares (conferring not more than five per cent. of the votes products which would normally be cast at a general meeting compete with such instrument (including any exchange traded instruments which track price movements of that companyany other digital cryptocurrency) or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:
(i) the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interestRestricted Territory; and
(ii) 8.1.3 hire, solicit or entice away, or endeavour to hire, solicit or entice away, in each case from any Target Group Company any person who is at the Seller relevant time, or its relevant subsidiary undertaking disposes of was in the Competitive Operations 12 months prior to a third party outside of the Seller’s Group within one year of the date of acquisition this Agreement, an employee of such Competitive Operations. For the purpose of any Target Group Company save that this clause 8.2(c) 8.1.3 shall not apply to any employee employed by any Target Group Company in a “minor part” of non-managerial or purely administrative role or to any employee who has been made redundant or otherwise dismissed by any Target Group Company after the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquiredCompletion Date.
8.3 The Seller agrees that the undertakings contained in this clause 8 are reasonable and are entered into for the purpose of protecting the goodwill of the business of each member of the Group as carried out at Completion.
8.4 8.2 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) not, either itself or by an agent and either on its own account or by alone or in association conjunction with or for the benefit of any other person person, directly or indirectly represent itself to be connected with indirectly, at any time, during the period of 24 months from the Completion Date, make any derogatory or interested critical statements or comments in the business of the Group.
8.5 If a breach of clauses 8.1relation to, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests otherwise disparage (whether defamatory or otherwise) any member of the Buyer and Group or any shareholder, investor, director, officer or employee of any Buyer Group Company and that injunctive relief (Company.
8.3 Nothing contained in addition to clause 8.1 shall prevent the Seller or any other equitable remedies) may (subject member of the Retained Group from:
8.3.1 entering into, or endeavouring to enter into, any agreement or arrangement relating to the discretion development, issue (or sponsoring the issue of) or management of any Bitcoin Instrument or any products which would compete with such Bitcoin Instrument (including any exchange traded instruments which track price movements of Bitcoin (or any derivative or variation thereof) or any other digital cryptocurrency):
(a) outside the courts) Restricted Territory, including without limitation Australia (and for the avoidance of doubt, the Australian Bitcoin Authorisation shall not be obtained.deemed to breach clause 8.1 of this Agreement); or
Appears in 1 contract
Samples: Share Sale Agreement (WisdomTree Investments, Inc.)
PROTECTION OF GOODWILL. 8.1 The In consideration of the Buyer entering into the sale and purchase of the Shares, the Seller hereby undertakes to procure that (except as otherwise agreed in writing agrees with the Buyer) neither the Seller not Buyer that it will not, whether on its own account, or by any of its subsidiary undertakings from time to time will or through any of their respective employees or agents or through any other person, firm or company either directly or indirectly and either solely or jointly with any other person (either on its own account or as the agent of any other person):
(a) and in any capacity whatsoever: for a period of 2 three years from the Completion carry on Date, provide services to or be employed or otherwise engaged or interested in any business which is engaged in the provision or supply of Restricted Services (except or any of them) in the Restricted Territory which competes with the CTS Business. Both parties agree that the carrying on of the ICTI Business by the Seller or any member of the Seller's Group at any time after Completion shall not be in contravention of this undertaking; for a period of three years from the Completion Date, solicit or canvass away from the Buyer any person, firm or company or other organisation (which was a customer or supplier of any of the Companies in respect of the CTS Business at any time during the twelve month period prior to Completion only for the provision of Restricted Services (or any of them)); for a period of two years from the Completion Date, solicit or entice away or endeavour to solicit or entice away from the Buyer any senior manager, director, project manager or sales staff (excluding support staff) and any key employee who would be treated as a "relevant employee" for the purposes of the Model Code contained in the Listing Rules, employed or retained by any of the Companies in relation to the CTS Business on Completion, whether or not such person would commit any breach of his contract of employment or terms of engagement by reason of his leaving the service of the Buyer PROVIDED THAT this restriction will not apply to any advertisements for recruitment made available generally through any recruitment agency or advertisement available to the public; or use any trade or domain name (including but not limited to the expressions "CTS" or "Technigal") or e-mail address used by the Group at any time during the two months immediately preceding the date of this agreement solely in relation to the CTS Business or any other name intended or likely to be confused with any such trade or domain name or e-mail address; or for a period of three years following the Completion date, use in the course of its business either of the domain names gxxxxxxxxxxxx.xxx or gxxxx-xxxxxxxx.xxx as the holder universal resource locator of shares any web site accessible on the internet. Nothing in a listed this clause 9 shall prevent or restrict any member of the Seller's Group from doing the following if they would otherwise be prohibited by this clause 9:- holding, or being interested in, up to but not exceeding 15 per cent. of the issued share or loan capital of any company which confer (or any amount of such issued share or loan capital carrying in aggregate up to but not more than five exceeding 15 per cent. of the votes which can generally could be cast at a general meeting of the such company) interested directly including without limitation a listed company; or indirectly in a business which competes with the type of business carried on by any member of the Group at Completion in the United Kingdom and Germany;
(b) for a period of 2 years from Completion induce, solicit or endeavour to entice to leave the service or employment or any member of the Group, any person who during the period of 6 months prior to Completion was an employee of any member of the Group occupying a senior or managerial position and likely (in the opinion of the Buyer) to be:
(i) in possession of confidential information relating to; or
(ii) able to influence the customer relationships or connections of any member of the Group provided that this shall not restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iii) for a period of two years from Completion, canvass, solicit, approach or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company any person for orders or instructions in respect of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom during the period of 12 months immediately prior to Completion.
8.2 Nothing in clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings from:
(a) carrying on or being engaged in or economically, interested in any business which, at the date of this agreement, it currently carries on or is engaged in or economically interested in or any reasonable extension or development thereof outside the United Kingdom and Germany;
(b) being the holder of shares (conferring not more than five per cent. of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 9.1 (the “"Competitive Operations”"), as part of a larger acquisition or series of related acquisitions provided that:
PROVIDED THAT the relevant member of the Seller's Group shall within the following twelve months use their best endeavours to sell the Competitive Operations as soon as is reasonably practicable following such acquisition (iwhich shall, without limitation, include inviting the Buyer to make a competitive bid for the sale of the Competitive Operations) save that the relevant member of the Seller's Group shall not be obliged to sell the Competitive Operations if those Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking Seller's Group has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “9.2(b), "minor part” " of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 the lower of ten per cent. cent of the gross turnover per annum or L5 million gross turnover per annum of the companyCompany, group of companies or business acquired.
8.3 . The Seller agrees with the Buyer that it will not at any time after Completion, whether by itself or through any other member of the Seller's Group, whether directly or indirectly, in the course of carrying on its business, claim or represent any continuing association with the Buyer in respect of the CTS Business for the purpose of obtaining or retaining any business or custom. The Seller agrees with the Buyer that the restrictions contained in this clause 9 are considered reasonable and necessary for the protection of value of the CTS Business (in particular the goodwill of the CTS Business) by the parties hereto and the Seller acknowledges that, in the light of the total price paid under this agreement and the manner of computation thereof, the nature of the business of the Group and all other relevant matters, the provisions of this clause 9 are considered reasonably necessary for the protection of the interests of the Buyer, and the restrictive covenants do not go beyond what is reasonably necessary to protect the legitimate business interests of the Buyer. In the event that any restriction in this clause 9 shall be found to be unenforceable but would be enforceable if some part thereof were deleted or the area of operation or the period of application reduced, such restriction shall apply with such modification as may be necessary to make it legal and enforceable. Without prejudice to the generality of the foregoing, if such invalidity arises by reason of the period of restriction being excessive, such period as shall be held by a court of competent jurisdiction to be reasonable shall be able to be substituted for the period herein in order to make the restriction binding on the relevant parties. Each undertaking contained in this clause 9 shall be construed as a separate undertaking and if one or more of the undertakings contained in this clause 8 are reasonable and are entered into for 9 is held to be against the purpose of protecting the goodwill of the business of each member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself public interest or by an agent and either on its own account or by unlawful or in association with or for any way an unreasonable restraint of trade the benefit of any other person directly or indirectly represent itself remaining undertakings shall continue to be connected with or interested in the business of the Group.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, bind the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of the Buyer and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion of the courts) be obtainedits subsidiary undertakings.
Appears in 1 contract
PROTECTION OF GOODWILL. 8.1 The Seller 12.1 As further consideration for the Purchaser agreeing to purchase the Shares on the terms contained in this Agreement and with the intent of assuring to the Purchaser the full benefit and value of the goodwill and connections of the Group each of Xxxxx Xxxxxxxx and Xxxxxx Xxxxxx hereby undertakes (binding himself and each of his Affiliates) to procure the Purchaser (contracting for itself and on behalf of the Company and of each of the Subsidiaries and for any successor in title to the Shares or to part or all of the Business) that (except as otherwise agreed in writing directors or employees of the Purchaser, the Company or of any of the Subsidiaries or with the Buyerwritten consent of the Purchaser) neither the Seller not any of its subsidiary undertakings from time to time will either solely he nor his Affiliates shall whether on their own behalf or jointly with any other person (either or on its own account or as the agent behalf of any other person):person and whether directly or indirectly by any or person or business controlled by him or any Connected Person:-
(a) 12.1.1 for a period of 2 three years from Completion carry on or be engaged employed, engaged, concerned, interested or (except as in any way assist within the holder United Kingdom in any business which may in any way be in competition with the Business provided that nothing in this clause 12.1.1 shall prevent such Vendors nor any of shares in a listed company which confer their Affiliates or Connected Persons from holding for investment purposes only any units of an authorised unit trust and/or not more than five three per cent. cent of any class of the votes which can generally be cast at issued share or loan capital of any company quoted on a general meeting of the company) interested directly or indirectly in a business which competes with the type of business carried on by any member of the Group at Completion recognised investment exchange (as defined in the United Kingdom and GermanyFinancial Services Act 1986);
(b) 12.1.2 for a period of 2 three years from Completion inducecanvass, solicit or endeavour to entice to leave the service or employment or any member of the Group, any person who during the period of 6 months prior to Completion was an employee of any member of the Group occupying a senior or managerial position and likely (in the opinion of the Buyer) to be:
(i) in possession of confidential information relating to; or
(ii) able to influence the customer relationships or connections of any member of the Group provided that this shall not restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iii) for a period of two years from Completion, canvass, solicit, approach or seek out or cause to be canvassed, solicited, solicited or approached (in relation to a business which may in any way compete with the Business) the custom of any person who at any time during the twelve months preceding Completion shall have been a client or sought out customer of the Company or by of any other means endeavour of the Subsidiaries;
12.1.3 for a period of three years from Completion interfere or seek to entice away interfere or take such steps as may interfere with supplies to the Company and/or any of the Subsidiaries from any Group Company any person for orders or instructions in respect of any suppliers who have been supplying goods or services competitive to the Company or to any of the Subsidiaries for use in connection with those supplied by the Business at any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom time during the period of 12 twelve months immediately prior to the date of Completion.;
8.2 Nothing in clause 8.1 shall prevent 12.1.4 for a period of three years from Completion offer employment to or restrict employ or offer to conclude any contract of services with employees of the Seller Company or of any of the Subsidiaries or procure or facilitate the making of such an offer by any person, firm or company or entice or endeavour to entice any employees of the Company or of any of the Subsidiaries to terminate their employment with the Company or any of its subsidiary undertakings from:the Subsidiaries;
(a12.1.5 at any time after Completion use as a trade or business name or xxxx or carry on a business under a title containing the word(s) carrying on or being engaged in or economically, interested in any business which, at the date of this agreement, it currently carries on or is engaged in or economically interested in "Roda" or any reasonable extension other word(s) colourably resembling the same; or
12.1.6 at any time after Completion disclose to any person whatsoever or development thereof outside use to the United Kingdom and Germany;
(b) being the holder of shares (conferring not more than five per cent. detriment of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole Company or any part of a business whichSubsidiary or otherwise make use of, or through any failure to exercise all due care and diligence cause any unauthorised use of, any Confidential Information including Know How relating or belonging to the share capital Company or to any of a company the Subsidiaries or group of companies whose business or a part of whose business, includes operations the carrying on in respect of which would otherwise amount to a breach the Company or any of the undertaking contained in clause 8.1 (the “Competitive Operations”), as part Subsidiaries is bound by an obligation of a larger acquisition or series of related acquisitions provided that:
(i) the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations confidence to a third party outside save as required by the Stock Exchange or by law or by any court of competent jurisdiction provided that such restriction shall not extend to any confidential or secret information which may come into the public domain otherwise than through the default of the Seller’s Group within one year of the date of acquisition of such Competitive OperationsVendor. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquired.
8.3 The Seller agrees that the undertakings Each undertaking contained in this clause 8 are reasonable 12.1 shall be read and are entered into for the purpose of protecting the goodwill construed independently of the business other undertakings herein as an entirely separate and severable undertaking.
12.2 In respect of each member Xxxxx Xxxxxxxx, the restricted periods contained in clauses 12.
1.1 to 12.1.4 shall be substituted by the following restricted periods:-
12.2.1 in the event that Xxxxx Xxxxxxxx'x employment under his Service Agreement (as amended from time to time) is terminated by reason of the Group as carried out at Company serving notice on Xxxxx Xxxxxxxx (otherwise than a notice to terminate in circumstances entitling the Company to terminate summarily), the restricted period shall be three years from Completion, and
12.2.2 in all other circumstances, the restricted period shall be five years from Completion.
8.4 The Seller undertakes 12.3 Notwithstanding the provisions of clause 12.2, Xxxxx Xxxxxxxx shall, if he has ceased to be an employee of the Buyer that Company in the circumstances set out in clause 12.2.1 and a period of at all times it will not (and will procure that none least two years has elapsed from Completion be entitled to seek the written consent of its subsidiary undertakings will) either itself the Purchaser to carry on or by an agent and either on its own account or by be employed, engaged, concerned, interested or in association any way assist within the United Kingdom in any business which may in any way be in competition with the Business and such consent shall not be unreasonably withheld or for the benefit of any other person directly or indirectly represent itself to be connected with or interested in the business of the Groupdelayed.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of the Buyer and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion of the courts) be obtained.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Cunningham Graphics International Inc)
PROTECTION OF GOODWILL. 8.1 10.1 The Seller hereby undertakes to the Buyer (for itself and as trustee for each member of the Group) that it will procure that (except as otherwise agreed in writing with no member of the Buyer) neither the Seller not any of its subsidiary undertakings from time to time will either solely or jointly with any other person (either on its own account or as the agent of any other person):Seller’s Group will:
(a) for a period of 2 five years from Completion carry on on, or be engaged a shareholder (directly or indirectly) in (except as the holder of shares in a listed company which confer not more than five per cent. cent of any class of securities which are listed or dealt in on a recognised securities exchange), or be a consultant to, any business within the Sultanate of Oman competing with any of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the type of business businesses carried on by the Group at Completion;
(b) during the period of five years from Completion solicit the custom of any person in the Sultanate of Oman in respect of goods or services competitive with those supplied by the Group prior to Completion, such other person (or their agents) having been a client or customer of the Group in the Sultanate of Oman in respect of such goods or services during the period of six months prior to Completion;
(c) during the period of five years from Completion solicit the services of, or endeavour to entice away from the Group any director, employee or consultant of the Group (other than Xxxxx Xxxxx) who at Completion or at any time during the period of six months prior to Completion occupied a senior or managerial position in relation to the Company or any member of the Group at Completion in the United Kingdom and Germany;
(b) for a period of 2 years from Completion induce, solicit or endeavour to entice to leave the service or employment or any member of the Group, any person and/or who during the period of 6 months prior to Completion was an employee of any member of the Group occupying a senior or managerial position and likely (in the opinion of the BuyerCompany) to be:
(i) in possession of confidential information relating to; or
(ii) able to influence the customer relationships or connections of of, any member of the Group provided that this shall (whether or not restrict such person would commit any breach of his contract of employment or engagement by reason of leaving the service of such company); nor
(d) use any trade or domain name (including the expressions “TOCO” and “The Oman Construction Company”) or logo or email address used by any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) at any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iii) for a period of time during the two years from Completion, canvass, solicit, approach or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company any person for orders or instructions in respect of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom during the period of 12 months immediately prior to Completion.
8.2 Nothing in clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings from:
(a) carrying on or being engaged in or economically, interested in any business which, at preceding the date of this agreement, it currently carries on or is engaged in or economically interested in agreement or any reasonable extension other name intended or development thereof outside likely to be confused with any such trade or domain name or e-mail address (excluding the United Kingdom name “Willbros” and Germany;
(b) being any trade or domain name or logo including the holder of shares (conferring not more than five per cent. of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 (the name “Competitive OperationsWillbros”), as part of a larger acquisition or series of related acquisitions provided that:
(i) the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquired.
8.3 10.2 The Seller agrees that the undertakings contained in this clause 8 10 are reasonable and are entered into for the purpose of protecting the goodwill and confidential knowhow of the business of each member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer and that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for accordingly the benefit of any other person directly or indirectly represent itself to the undertakings may be connected with or interested in the business of the Group.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of assigned by the Buyer and its successors in title without the consent of the Seller.
10.3 Each undertaking contained in this clause 10 is and shall be construed as separate and severable and if one or more of the undertakings is held to be against the public interest or unlawful or in any Group Company way an unreasonable restraint of trade or unenforceable in whole or in part for any reason the remaining undertakings or parts thereof, as appropriate, shall continue to bind the Seller.
10.4 If any undertaking contained in this clause 10 shall be held to be void but would be valid if deleted in part or reduced in application, such undertaking shall apply with such deletion or modification as may be necessary to make it valid and that injunctive relief (in addition to any other equitable remedies) may (subject enforceable. Without prejudice to the discretion generality of the courtsforegoing, in such circumstances, any relevant period of time (as the same may previously have been reduced by virtue of this clause 10.4) shall take effect as if reduced by successive six month periods until the resulting period shall be obtainedvalid and enforceable.
Appears in 1 contract
Samples: Share Purchase Agreement (Willbros Group, Inc.\NEW\)
PROTECTION OF GOODWILL. 8.1 The Seller hereby undertakes 9.1 For the purposes of this Clause 9, the words "Restricted Person" means any member of the Sellers' Group.
9.2 Subject to procure Clauses 9.3 and 9.4, the Sellers undertake to the Buyer (for itself and as trustee for the holders for the time being of the Shares but so that (except the Buyer shall not as otherwise agreed trustee be under any obligation to such holders to enforce the undertakings and may release or waive them in writing with whole or in part as it, in its absolute discretion, thinks fit) that without the Buyer) neither written consent of the Seller not any of its subsidiary undertakings from time to time will either solely or jointly with any other person (either on its own account or as the agent of any other person):Buyer:-
(a) 9.2.1 for a period of 2 years from Completion they will not in the United Kingdom, the European Union or Dubai in any capacity whatsoever directly or indirectly carry on or assist in carrying on or be engaged engaged, concerned or (except as the holder of shares interested in a listed company which confer not more than five per cent. of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a any business which competes with the type of business carried on by Restricted Business (or with any member part of the Group at Completion in the United Kingdom and GermanyRestricted Business);
(b) 9.2.2 for a period of 2 years from Completion inducethey will not and will procure that no other Restricted Person will do any act or thing with the primary intention of causing any supplier of or other person in the habit of dealing with the Company (at Completion) to be unable or unwilling to deal with the Company either at all or in part or on the terms on which it had previously dealt with the Company or with the primary intention of causing any person having a contract or arrangement with the Company (at Completion) to breach, terminate or modify that contract or arrangement to exercise any right under it; and
9.2.3 for a period of 2 years from Completion they will not and will procure that no other Restricted Person will solicit or endeavour to entice to leave away from the service or employment or Company any member employee of the Group, any person Company who during the period of 6 months prior to Completion was an employee of any member of the Group occupying a senior or managerial position and likely (in the opinion of the Buyer) to be:
(i) in possession of confidential information relating to; or
(ii) able to influence the customer relationships or connections of any member of the Group provided that this shall not restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iii) for a period of two years from Completion, canvass, solicit, approach or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company any person for orders or instructions in respect of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom during the period of 12 months immediately prior to Completion.
8.2 Nothing in clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings from:
(a) carrying on or being engaged in or economically, interested in any business which, at the date of this agreement, it currently carries on or is engaged in or economically interested in or any reasonable extension or development thereof outside Agreement and at the United Kingdom and Germany;
(b) being the holder of shares (conferring not more than five per cent. of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:
(i) the Competitive Operations comprise a minor part of the business or the business time of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired attempt an interestEmployee; and
9.2.4 they will not at any time in connection with any business carried on by it or otherwise howsoever use directly or indirectly or authorise any person to use directly or indirectly any distinctive mxxx, style or logo the rights to which, at Completion, were owned by the Company or the Subsidiary (ii“Company Trademarks”) or any mxxx, style or logo confusingly similar to or likely to be confused with any Company Trademarks, nor use the Seller name "Contico" (or its relevant subsidiary undertaking disposes any name confusingly similar thereto) in the UK, Europe or Dubai.
9.3 The restrictions in Clause 9.2 shall terminate with regard to the obligations of the Competitive Operations to KII, CEH or any Restricted Person (respectively) immediately upon a third party outside change of the Seller’s Group within one year control of the date of acquisition of such Competitive Operationsthat particular company. For the purpose of this clause 8.2(cclause, "change of control" shall mean the acquisition by a third party and any connected person (in one transaction or a series of transactions) of (i) an interest in shares in the relevant company conferring in aggregate more that 50% of the total voting rights conferred by all of the issued shares in that company or any of its parents, taking account at the relevant time of provisions regarding voting rights contained in the articles of association of that company or its parents, as applicable, or (ii) substantially all (over 85 per cent) of its assets.
9.4 Nothing in Clause 9.2 shall prevent KII or CEH or any other Restricted Person from:-
9.4.1 owning not more than five per cent of any class of the issued share capital of a “minor part” company which is dealt in on a recognised investment exchange (as defined in the Financial Services and Markets Act 2000); or
9.4.2 employing any person who has approached the relevant party as a result of a general advertising campaign by or on behalf of KII, CEH or such other Restricted Person.
9.5 KII and CEH have taken independent legal advice and acknowledge that they consider the undertakings contained in Clause 9.2 reasonable for the proper protection of the business of such company, group of companies or business shall be part of its overall business in which the turnover Company and the legitimate interests of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquiredBuyer.
8.3 The Seller agrees that 9.6 Each of the undertakings contained in this clause 8 are reasonable Clause 9.2 is separate and are entered into for severable and shall be construed on that basis. In the purpose event that any of protecting the goodwill of the business of each member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary such undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit of any other person directly or indirectly represent itself is found to be connected void but would be valid if some part of it were deleted or if the period or extent of it were reduced such undertaking shall apply with or interested in the business of the Groupsuch modification as may be necessary to make it valid and effective.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of the Buyer and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion of the courts) be obtained.
Appears in 1 contract
PROTECTION OF GOODWILL. 8.1 The Seller hereby undertakes (A) As further consideration for the Purchaser agreeing to procure that (except as otherwise agreed purchase the Shares on the terms contained in writing this Agreement and with the Buyer) neither intent of assuring to the Seller not any of its subsidiary undertakings from time to time will either solely or jointly with any other person (either on its own account or as Purchaser the agent of any other person):
(a) for a period of 2 years from Completion carry on or be engaged or (except as the holder of shares in a listed company which confer not more than five per cent. full benefit and value of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the type of business carried on by any member of the Group at Completion in the United Kingdom goodwill and Germany;
(b) for a period of 2 years from Completion induce, solicit or endeavour to entice to leave the service or employment or any member connections of the Group, any person who during the period of 6 months prior to Completion was an employee of any member of the Group occupying a senior Seller shall not (and shall procure that no Connected Person or managerial position and likely (in the opinion of the Buyer) to be:agent or representative thereof shall):
(i) in possession of confidential information relating to; or
(ii) able to influence the customer relationships or connections of any member of the Group provided that this shall not restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iii) for a period of two years from Completion, canvass, solicit, approach following the Completion Date carry on or seek out be engaged or cause to be canvassed, solicited, approached or sought out or by economically interested in any other means endeavour to entice away from any Group Company any person for orders or instructions business carrying on in respect competition with the business of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or the Acquired Business anywhere in the United Kingdom during the period of 12 months immediately prior to Completion.
8.2 Nothing in clause 8.1 world, save that nothing shall prevent or restrict the Seller or any member of the Seller's Group (i) from conducting its subsidiary undertakings from:
business to the extent currently conducted by any member of the Seller's Group which may compete or be similar to the business of the Acquired Group (aother than operating Penhaligon's stores or operations) carrying on or being engaged in or economically, interested in any business which, at the date of this agreement, it currently carries on or is engaged in or economically interested in or any reasonable extension or development thereof outside the United Kingdom and Germany;
(bii) being the holder of shares (conferring not more than five 10 per cent. cent of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any a business referred similar to in clause 8.1(a);
the Acquired Business or (ciii) from acquiring the whole or any a part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in this sub-clause 8.1 (the “Competitive Operations”), i) as part of a larger acquisition or series of related acquisitions if the acquisition is not made with the sole or main purpose of acquiring such business or (iv) from trading with its existing customers or any future customers provided that:
(i) the Competitive Operations comprise a minor part it does not do so in direct competition with any member of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interest; andGroup;
(ii) directly or indirectly, during the Seller period of two years from the Completion Date, solicit, entice away or its relevant subsidiary undertaking disposes of the Competitive Operations hire, or endeavour to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such companysolicit, group of companies entice away or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquired.
8.3 The Seller agrees that the undertakings contained in this clause 8 are reasonable and are entered into for the purpose of protecting the goodwill of the business of each hire from any member of the Group any person who was at the Completion Date, an employee of any member of the Group whether or not such person would commit a breach of his employment contract by reason of leaving service, save that this clause shall not apply to (a) any employee employed by any member of the Group earning less than 'L'20,000 (or its equivalent) or (b) responses to job advertisements in newspapers or journals or (c) unsolicited approaches by any such employee to any employment agency retained by any member of the Seller's Group;
(iii) for two years following Completion, intentionally interfere or seek to interfere or take such steps as carried out at Completion.
8.4 The Seller undertakes may interfere with supplies to the Buyer that Group from any suppliers who shall have been supplying goods or services to the Group for use in connection with the Acquired Business at all times it will not any time during the period of two years prior to the date of Completion in each case which would have an adverse effect on the Group's supply arrangements;
(and will procure that none of its subsidiary undertakings williv) either itself willfully disparage the Purchaser or by an agent and either on its own account or by or in association with or for the benefit of any other person directly or indirectly represent itself to be connected with or interested in the business member of the Group.
8.5 If a breach (B) Each of clauses 8.1the restrictions in this clause 12 shall be enforceable independently of each of the others and its validity shall not be affected if any of the others is invalid.
(C) Whilst the undertakings in this clause 12 are considered by the parties to be reasonable in all the circumstances, 8.2 or 8.3 occurs, if any of the restrictions in this clause 12 is void but would be valid if some part of the restriction was deleted the restriction in question shall apply with such modification as may be necessary to make it valid.
(D) The Seller acknowledges that the above provisions of this clause 12 are no more extensive than is reasonable to protect the Purchaser in respect of its purchase of the Shares and the other matters contemplated by this Agreement.
(E) The Seller acknowledges that following Completion neither it nor any member of the Seller's Group shall have the right to use the name "Penhaligon's" nor the right to use of the Group's Intellectual Property provided that the Purchaser agrees that the Seller and each member of the Buyer Seller's Group and their respective employees shall have a reasonable time following Completion to change the name of any member of the Seller's Group prefixed with the name "Penhaligon's" or destroy or amend business cards and office stationery bearing the name "Penhaligon's".
(F) The Seller and the Purchaser agree that damages alone are likely not the restriction contained in sub-clause 12(A)(i) above shall terminate and cease to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard enforceable against the interests Seller or any member of the Buyer and of Seller's Group immediately upon the Seller or any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion member of the courtsSeller's Group (or their respective assets) be obtainedbeing acquired by a purchaser which competes with the Purchaser or the Group and/or is otherwise involved in the same or similar business as the Acquired Business.
Appears in 1 contract
Samples: Agreement Relating to the Sale and Purchase of Shares (Warnaco Group Inc /De/)
PROTECTION OF GOODWILL. 8.1 9.1 The Seller hereby undertakes to procure that (except as otherwise agreed in writing with the Buyer) neither no member of the Seller not any of its subsidiary undertakings from time to time Seller's Group will either solely or jointly with any other person (either on its own account or as the agent of any other person):person):-
(a) for a period of 2 years from Completion carry on or be engaged or concerned (except as the holder of shares in a listed company which confer not more than five per cent. of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the type of business carried on by any member of the Target Group at Completion in the United Kingdom countries and Germanyindustries where any Target Group Company operates;
(b) for a period of 2 years from Completion induce, solicit or endeavour to entice to leave the service or employment or of any member of the Target Group, any person who during the period of 6 12 months prior to Completion was a consultant or an employee of any member of the Target Group occupying a senior or managerial position and (a "MANAGER") likely (in the opinion of the Buyer) to be:be:-
(i) in possession of confidential information relating to; or
(ii) able to influence the customer relationships or connections of any member of the Group provided that this shall not restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group CompanyTarget Group; or
(iiic) for a period of two years from Completion, canvass, solicit, approach Completion solicit or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company the custom of any person for orders or instructions in respect of any existing goods or services competitive with those manufactured or supplied by any member of the Target Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom during the period of 12 months immediately prior to Completion, such person having been a customer of the Target Group in respect of such goods or services during such period; or
(d) for a period of two years from Completion solicit or entice the custom of any person in respect of existing goods or services manufactured or supplied to any member of the Target Group immediately prior to Completion, such person having been a supplier of the Target Group in respect of such goods or services during such period; or
(e) use or attempt to use any trade or domain name, trade or service mark, xxsign or logo or e-mail address used by any member of the Target Group at any time during the 2 years immediately preceding the date of this agreement or any other name intended or likely to be confused with any such trade or domain name, or trade or service mark, xxsign or logo or e-mail address.
8.2 9.2 Nothing in clause 8.1 9 shall prevent or restrict any member of the Seller or any of its subsidiary undertakings from:Seller's Group from:-
(a) carrying on or being engaged in or economically, economically interested in any business which, at the date of this agreement, it currently carries on or is engaged in or economically interested in or any reasonable extension or development thereof outside (other than the United Kingdom car body seals businesses as operated by the Target Group immediately preceding the date of this agreement and Germanybeing sold hereunder);
(b) carrying on or being engaged in or economically interested in any business referred to in clause 9.1
(a) after such time as the Buyer's Group ceases to carry on or be engaged in or economically interested in such business to any material extent;
(c) being the holder of shares (conferring not more than five per cent. of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a9.1(a);
(cd) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 9.1 (the “Competitive Operations”"COMPETITIVE OPERATIONS"), as part of a larger acquisition or series of related acquisitions provided that:
(i) if the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking Seller's Group has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For interest and for the purpose of this clause 8.2(c) 13.2 a “minor part” "MINOR PART" of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquired; and
(e) generally soliciting to the public for employment with the Seller's Group and to which any Managers and Senior Executives responded without any other solicitation or prompting and without such general solicitation being directed at employees, or any of them, of the Buyer's Group or the Target Group.
8.3 9.3 The Seller agrees that the undertakings contained in this clause 8 13 are reasonable and are entered into for the purpose of protecting the goodwill of the business of each member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit of any other person directly or indirectly represent itself to be connected with or interested in the business of the Target Group.
8.5 9.4 Each undertaking contained in this clause 13 is and shall be construed as separate and severable and if one or more of the undertakings is held to be against the public interest or unlawful or in any way an unreasonable restraint of trade or unenforceable in whole or in part for any reason the remaining undertakings or parts thereof, as appropriate, shall continue to bind the Seller.
9.5 If a breach any undertaking contained in this clause 13 shall be held to be void but would be valid if deleted in part or reduced in application, such undertaking shall apply with such deletion or modification as may be necessary to make it valid and enforceable which as far as possible has the same legal and commercial effect as that which it replaces. Without prejudice to the generality of clauses 8.1the foregoing, 8.2 such period (as the same may previously have been reduced by virtue of this clause 9.5) shall take effect as if reduced by six months until the resulting period shall be valid and enforceable.
9.6 Nothing in this agreement shall give the Buyer any rights to the names "The Lairx Xxxup Public Limited Company" or 8.3 occurs"Lairx" xx any related or similar trade names, trade marks, service marks or logos to the Seller extent that the same incorporate the names "The Lairx Xxxup Public Limited Company" or "Lairx" xx any confusingly similar variation thereof and the Buyer agree acknowledges that damages alone are likely not to be sufficient compensation the Seller is and that injunctive relief is reasonable will remain the owner of all such names, trade marks, service marks, logos and is likely to be essential to safeguard the interests of the Buyer and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion of the courts) be obtainedconfusingly similar variations thereof.
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Samples: Agreement for the Sale and Purchase of Shares (Gencorp Inc)
PROTECTION OF GOODWILL. 8.1 The Seller hereby 9.1 Subject to the following provisions of this Clause 9, the Vendor undertakes to procure that (except as otherwise agreed in writing with neither it nor any other member of the Buyer) neither Vendor Group will for a period of two years after Completion within the Seller not any of its subsidiary undertakings from time to time will United Kingdom without the Purchaser's prior written consent directly or indirectly carry on or be engaged, concerned or interested either solely or jointly with any other person (either on its own account in any of the activities of the Business or as solicit the agent custom of any other person):person for any of the activities of the Business.
(a) 9.2 The Vendor undertakes that it will not and that it will procure that no member of the Vendor Group will not at any time after Completion without the Purchaser's prior written consent:-
9.2.1 with the exception of the word "Xxxxxx", use any name identical to or likely to be confused with a name used by the Group prior to Completion in connection with the Business;
9.2.2 save for the purposes of and to the extent reasonably necessary for dealing with taxation matters in accordance with the terms of the Tax Deed, hold itself out as having any continuing connection with the Group or the Business;
9.2.3 subject to Clause 9.5 disclose or use any trade secrets or confidential information relating to the Group and/or the Business which it has acquired prior to Completion; or
9.2.4 for a period of 2 two years from Completion carry on or be engaged or (except as the holder of shares in a listed company which confer not more than five per cent. of the votes which can generally be cast at a general meeting of the company) interested directly or indirectly in a business which competes with the type of business carried on by any member of the Group at Completion in the United Kingdom and Germany;
(b) for a period of 2 years from after Completion induce, solicit or endeavour to entice any director or senior manager to leave the service or employment of the Company or the Group, but the foregoing shall not be taken to prevent the Vendor Group from advertising vacancies generally nor from employing anyone who bona fide responds to any such advertisements .
9.3 The Vendor undertakes that it will and that it will procure that the each member of the Vendor Group will make reasonable efforts to maintain the confidentiality of any confidential information relating to the Group and/or the Business which it may acquire in any manner.
9.4 Nothing in this Agreement shall in any way prevent the Vendor or any member of the Group, Vendor Group at any person who during the period of 6 months prior to Completion was an employee of any member of the Group occupying a senior or managerial position and likely (in the opinion of the Buyer) to be:
time from (i) in possession owning, leasing or chartering aircraft for the purposes of confidential information relating to; or
the Vendor Group or (ii) able to influence the customer relationships acquiring any firm or connections partnership or business of any member of the Group provided that this shall not restrict any member of the Seller’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; or
(iii) for a period of two years from Completion, canvass, solicit, approach or seek out or cause to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company any person for orders or instructions in respect of any goods or services competitive with those supplied by any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom during the period of 12 months immediately prior to Completion.
8.2 Nothing in clause 8.1 shall prevent or restrict the Seller sole trader or any of its subsidiary undertakings from:
(a) carrying on shares or being engaged in or economically, interested in any business which, at the date of this agreement, it currently carries on or is engaged in or economically interested in or any reasonable extension or development thereof outside the United Kingdom and Germany;
(b) being the holder of shares (conferring not more than five per cent. of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole or any part of a business which, or the share capital assets of a company or group of companies whose business or a part of whose business, includes operations the carrying which carried on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 (the “Competitive Operations”), as part of its operation a larger business similar to the Business (herein called "the Restricted Business") provided that the principal reason for the acquisition or series of related acquisitions provided that:
(i) such business is other than to engage in the Competitive Operations comprise Restricted Business and that the Restricted Business constitutes and continues thereafter to constitute until the expiry of the said period of two years a minor part of the activity of such business or the business of such company, company or group of companies or businesses acquired or in which as acquired, that is to say, the Seller or its relevant subsidiary undertaking has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes aggregate turnover of the Competitive Operations to a third party outside Restricted Business does not exceed pound sterling20 million or 10% of the Seller’s Group within one year of the date of acquisition aggregate turnover of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, or company or group of companies or business shall be part in its last financial year (as defined by section 742 of its overall business in the Act) for which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquiredaccounts thereof are made up.
8.3 The Seller agrees that the undertakings contained in this clause 8 are reasonable and are entered into for the purpose of protecting the goodwill of the business of each member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit of any other person directly or indirectly represent itself to be connected with or interested in the business of the Group.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, the Seller and the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of the Buyer and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion of the courts) be obtained.
Appears in 1 contract
PROTECTION OF GOODWILL. 8.1 The 13.1 Each Seller hereby severally undertakes to the Buyer and each Group Company that without the prior written consent of the Buyer they shall not (and shall procure that (except as otherwise agreed none of their connected persons shall) directly or indirectly, in writing with the Buyer) neither the Seller not any of its subsidiary undertakings from time to time will capacity, either solely by themselves or jointly in conjunction with any other person (either persons or through their employees or agents or otherwise, and whether on its their own account behalf or as the agent on behalf of any other person):person or otherwise howsoever:
(a) for a period of 2 years from 24 months after Completion carry on on, be engaged, concerned or interested in any capacity (whether for reward or otherwise) in, or provide any technical, commercial or professional advice to, or in any way assist any business which is or is about to be engaged in the development, manufacture, production, distribution or (except as the holder of shares in a listed company which confer not more than five per cent. sale of the votes which can generally be cast at a general meeting Restricted Products or any of them or the supply of the company) interested directly Restricted Services or indirectly any of them in a the Prohibited Area in competition with all or any part of the business which competes with the type of business any Group Company as carried on by any member of at or during the Group at Completion in the United Kingdom and Germany24 months prior to Completion;
(b) for a period of 2 years 24 months after Completion in competition with any Group Company solicit business from or canvass any Customer or Prospective Customer if such solicitation or canvassing is in respect of the Restricted Products or the Restricted Services;
(c) for a period of 24 months after Completion inducein competition with any Group Company, accept orders for Restricted Products or Restricted Services from any Customer or Prospective Customer;
(d) for a period of 24 months after Completion solicit or endeavour induce or attempt to entice to leave the service solicit or employment or any member of the Group, induce any person who during the period of 6 months prior to at Completion was an employee a director, manager, salesman or Senior Employee of any member Group Company to cease working for or providing services to any Group Company whether or not any such person would thereby commit any breach of the Group occupying a senior or managerial position and likely (contract provided that this shall not apply in the opinion of the Buyer) relation to beany person who:
(i) answers a bona fide public advertisement placed by or on behalf of the Seller or their relevant connected person in possession relation to a post available to members of confidential information relating tothe public generally without there having been any previous contact between the Seller or any of their connected persons (or any person acting on behalf of the Seller or any such connected person) and such person; or
(ii) able to influence the customer relationships is made redundant or connections of whose employment is terminated at any time by any member of the Buyer’s Group;
(e) for a period of 24 months after Completion employ or otherwise engage any person who at Completion was a director, manager, salesman or Senior Employee of any Group Company provided that this shall not restrict apply in relation to any person who:
(i) answers a bona fide public advertisement placed by or on behalf of the Seller or their relevant connected person in relation to a post available to members of the public generally without there having been any previous contact between the Seller or any of their connected persons (or any person acting on behalf of the Seller or any such connected person) and such person; or
(ii) is made redundant or whose employment is terminated at any time by any member of the SellerBuyer’s Group from advertising or otherwise taking steps to recruit (and/or subsequently employing) any person which is or are not specifically aimed at a particular employee or group of employees of any Group Company; orGroup;
(iiif) for a period of two years from Completion24 months after Completion solicit or induce or attempt to solicit or induce any Supplier to cease supplying, canvassor to materially reduce its supply of, solicit, approach or seek out or cause goods and/or services to be canvassed, solicited, approached or sought out or by any other means endeavour to entice away from any Group Company or in any person for orders other way interfere or instructions in respect of any goods or services competitive seek to interfere with those supplied by the relationship between any Group Company and with whom any Group Company has transacted as a supplier in Germany and/or in the United Kingdom during the period of 12 months immediately prior to Completion.
8.2 Nothing in clause 8.1 shall prevent or restrict the Seller or any of its subsidiary undertakings from:Supplier; or
(ag) carrying on or being engaged in or economically, interested in any business which, at the date of this agreement, it currently carries on or is engaged in or economically interested in or any reasonable extension or development thereof outside the United Kingdom and Germany;
(b) being the holder of shares (conferring not more than five per cent. of the votes which would normally be cast at a general meeting of that company) or debentures of a company which is engaged in any business referred to in clause 8.1(a);
(c) acquiring the whole or any part of a business which, or the share capital of a company or group of companies whose business or a part of whose business, includes operations the carrying on of which would otherwise amount to a breach of the undertaking contained in clause 8.1 (the “Competitive Operations”), as part of a larger acquisition or series of related acquisitions provided that:
(i) the Competitive Operations comprise a minor part of the business or the business of such company, group of companies or businesses acquired or in which the Seller or its relevant subsidiary undertaking has acquired an interest; and
(ii) the Seller or its relevant subsidiary undertaking disposes of the Competitive Operations to a third party outside of the Seller’s Group within one year of the date of acquisition of such Competitive Operations. For the purpose of this clause 8.2(c) a “minor part” of the business of such company, group of companies or business shall be part of its overall business in which the turnover of the Competitive Operations does not exceed 10 per cent. of the gross turnover of the company, group of companies or business acquired.
8.3 The Seller agrees that the undertakings contained in this clause 8 are reasonable and are entered into for the purpose of protecting the goodwill of the business of each member of the Group as carried out at Completion.
8.4 The Seller undertakes to the Buyer that at all times it will not (and will procure that none of its subsidiary undertakings will) either itself or by an agent and either on its own account or by or in association with or for the benefit of assist any other person directly or indirectly represent itself to be connected with or interested in the business do any of the Groupforegoing things.
8.5 If a breach of clauses 8.1, 8.2 or 8.3 occurs, 13.2 In this clause 13 the Seller and following expressions have the Buyer agree that damages alone are likely not to be sufficient compensation and that injunctive relief is reasonable and is likely to be essential to safeguard the interests of the Buyer and of any Group Company and that injunctive relief (in addition to any other equitable remedies) may (subject to the discretion of the courts) be obtained.following meanings:
Appears in 1 contract
