Restrictive Covenants. (a) During the term of this Agreement and for a period of one (1) year after the termination or expiration thereof, the Employee will not directly or indirectly: (i) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or (ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or (iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company. (iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring. (b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable. (c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary herein.
Appears in 2 contracts
Samples: Employment Agreement (Ocean Power Technologies, Inc.), Employment Agreement (Ocean Power Technologies, Inc.)
Restrictive Covenants. (a) During For and during the term of this Agreement and for a period of one (1) year after time commencing on the termination or expiration thereofClosing Date and expiring 5 years thereafter, the Employee will no Seller shall, and each Seller shall cause its Subsidiaries not to, directly or indirectly:
(i) , whether individually or in partnership or association with any one or more persons or entities, or as an individual proprietora principal, partner, stockholdermember, officermanager, shareholder, agent, employee, directorconsultant, joint venturer, investor, lenderor contractor, or in any other capacity whatsoever capacity:
(other a) establish or participate in, or lend money to or otherwise finance, a business competing with the Business within a 150 miles radius of any Facility (the “Restricted Territory”); provided, however, that an ownership interest of less than as the holder of not more than one percent (1%) 2% of the total outstanding stock of any publicly traded corporation that is engaged in a publicly held companybusiness competing with the Business shall not be deemed to violate this Section 5.08(a), engage in so long as no officer, manager or director of any Seller or any Affiliate of any Seller is a member of the board of directors (or other similar governing body) of such publicly traded corporation;
(b) solicit, contact, request, induce or attempt to influence any Person that is or was a customer, supplier or vendor of the Business as of the Closing Date or at any time during the 2 years prior to the Effective Date to purchase or provide products or services that are the same or substantially similar to those offered to such customer by such Seller or provided to such Seller by such supplier or vendor pursuant to the Business as of the Effective Date; provided, however, that this Section 5.08(b) shall not prevent Sellers or their Subsidiaries from purchasing products or services from suppliers or vendors who provide general products or services (including commercially available software, office equipment, and the like) to the business of developing, producing, marketing public at large;
(i) solicit for employment (or selling services of assist anyone in soliciting the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employment of) any individual employed by any Seller with respect to the CompanyBusiness that is subsequently retained by Buyer as an employee; or (ii) induce, or assist anyone in inducing, any individual employed by any Seller with respect to the Business that is subsequently retained by Buyer as an employee to resign or sever employment, or to terminate or breach any employment agreement, with Buyer; provided, that general advertisements or solicitation programs conducted by or on behalf of a Seller or any of its Affiliates that are not specifically directed toward such employees shall not be deemed to violate this Section 5.08(c); or
(iid) hireBuyer and Sellers expressly agree and acknowledge the terms of this Section 5.08 are reasonable in scope, engagetime and territory, recruit, solicit or induce, or attempt and are necessary to induce, any current or prospective employee, officer, director, contractor or other business associate protect the value of the Company Assets and Business purchased pursuant to terminate their employment withthe Transaction. If a court of competent jurisdiction renders a ruling (sustained on appeal, if any) holding that any one or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any more of the clientsprovisions of this Section 5.08 constitute an unreasonable restriction, customers or accounts, or prospective clients, customers or accounts, of then the Company which were contacted, solicited or served by Parties specifically agree that the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” applicable provision shall not be rendered void but shall apply to any individual or entity with which such extent as such court may determine constitutes a reasonable restriction under the Company has had substantive contact within circumstances. The Parties recognize and agree that Buyer would not be willing to enter into this Agreement nor consummate the twelve month period prior Transaction without Sellers’ agreement to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction restrictive covenants set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 5.08 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific Sellers’ performance and injunctive relief in any court observance of competent jurisdiction, regardless of any statement this Section 5.08 is valuable consideration for Buyer’s willingness to enter into this Agreement and pay the contrary hereinPurchase Price to Sellers.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Industrial Services of America Inc), Asset Purchase Agreement (Industrial Services of America Inc)
Restrictive Covenants. (a) During 18.1 Subject always to clause 18.2, the term Seller covenants with the Buyer that it will not and will procure that any other member of this Agreement the Seller’s Group will not either on its or their own account or through or in conjunction, association or by arrangement with or on behalf of any person or persons whether for its own benefit or that of others and whether directly or indirectly for a the period of one (1) year after the termination or expiration thereof, the Employee will not directly or indirectlythree years from Completion:
(i) 18.1.1 in competition with the Business as an individual proprietorcarried on at Completion supply products or provide services to any person, partnerfirm or company who or which was either at Completion or during the period of 24 months prior to Completion a client or customer of the Business where such goods or services are the same as or similar to or compete with products sold or services provided by the Business to that person, stockholderfirm or company at or during the period of 24 months prior to Completion;
18.1.2 in competition with the Business as carried on at Completion solicit or endeavour to solicit the custom of or canvas or approach any person, firm or company who or which was either at Completion or during the period of 24 months prior to Completion had been a client or customer of the Business, for the supply of products or the provision of services which are the same as or similar to or compete with those products sold or services provided by the Business to that person, firm or company at or during the period of 24 months prior to Completion;
18.1.3 other than by way of general advertisement solicit or entice away or endeavour to solicit or entice away from the Buyer any officer, employee, director, joint venturer, investor, lendermanager, or other senior employee who was either at Completion or during the period of 12 months prior to Completion engaged in the Business whether or not such person would commit a breach of his contract of employment by reason of leaving service;
18.1.4 carry on or be engaged, concerned or interested in any other capacity whatsoever business which competes with the Business as the same was carried on at Completion (other than as the a holder of securities listed on a recognised investment exchange or provided that such holding will not exceed five per cent of the class of securities of which the said holding forms part); or
18.1.5 employ or conclude any contract for services with any director, senior manager, or senior employee (being an employee with an annual salary of more than one percent £50,000) who worked in the Business at Completion.
18.2 Nothing in this Agreement shall prevent Chemring Australia Pty Ltd, ACN 004 669 452 ABN 96 004 669 452 of Sxxxx 0/0000 Xxxxxxx Xxxx, Xxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxxx 0000 (1%whose registered office is at 200 Xxxxxxx Xxxx Xxxx Xxxxxxxx Xxxxxxxxx 3212) from carrying on its business in fulfilling:
18.2.1 its obligations under its contract dated 12 July 2005 with Kinetic Technology International Pty Ltd, copy of which is attached to the Disclosure Letter at Folder 2b, Section 7 of the total outstanding stock Disclosure Letter; or
18.2.2 any obligations it may have arising as a result of a publicly held company), engage carrying on its business prior to the Transfer Date to the extent that they relate either: (i) to its liabilities in the business of developing, producing, marketing or selling relation services of the kind or type developed or being developed, produced, marketed and/or products supplied or sold by it prior to the Company while the Employee was employed by the CompanyTransfer Date; or
or (ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the CompanyProducts.
(iv) For 18.3 Each restriction in clause 18.1 constitutes an entirely independent restriction on the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringSeller.
(b) 18.4 If any restriction set forth in this Section 6 clause 18.1 is found by any court of competent jurisdiction determined to be unenforceable because it extends for too long a period of time or over too great a range of activities in whole or in too broad a geographic areapart, it shall be interpreted to extend only over its unenforceability will not affect the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection enforceability of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 remaining restrictions or 8 will cause the Company substantial and irrevocable damage and therefore, (in the event case of any such breach, restrictions enforceable in addition to such other remedies which may be available, part) the Company shall have the right to seek specific performance and injunctive relief in any court remainder of competent jurisdiction, regardless of any statement to the contrary hereinthat restriction.
Appears in 2 contracts
Samples: Asset Sale and Purchase Agreement (Applied Digital Solutions Inc), Asset Sale and Purchase Agreement (Digital Angel Corp)
Restrictive Covenants. (a) During In consideration of the term benefits received in connection with the transactions contemplated hereby, and such other good and valuable consideration, the receipt and sufficiency of this Agreement which is acknowledged, each Seller and X. Xxxx agrees that, for a the period of one (1) year beginning on the Closing Date and ending five years after the termination or expiration thereofClosing Date (the “Noncompete Period”), the Employee will such Seller and X. Xxxx shall not directly or indirectly:
(i) as an individual proprietorindirectly own, partnermanage, stockholdercontrol, officerparticipate in, employeeconsult with, directorrender services for, joint venturer, investor, lender, operate or in any other capacity whatsoever manner engage (other than including individually or in association with any Person) in any business anywhere in the world that, directly or indirectly, has as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in business purpose or conducts any activity which is or may reasonably be construed to be competitive with the business of developingthe Purchaser or any of its Subsidiaries (including, producing, marketing or selling services for the purpose of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship withthis Section 4.3, the Company; or
(iii, but specifically excluding Vroozi, Inc., LTC Supply Source, LLC, and QVO, Inc.) solicit, divert as currently conducted or take away, or attempt as proposed to divert or to take away, be conducted as evidenced by the business or patronage of any books and records of the clients, customers or accounts, or prospective clients, customers or accounts, Purchaser and its Subsidiaries as of the Company which were contacted, solicited or served by Closing Date (the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringRestricted Business”).
(b) If During the Noncompete Period, each Seller and X. Xxxx shall not directly or indirectly (whether individually or through another Person) (i) call on or solicit any restriction Person who or which is, at that time, or has been within two years prior thereto, a customer of the Purchaser or any of its Subsidiaries to the extent related to the Restricted Business; (ii) solicit the employment of or hire any Person who at the time of such solicitation or hiring or who within one year prior thereto, is or was employed by the Purchaser or any of its Subsidiaries on a full or part-time basis; (iii) on such Seller’s or X. Xxxx’ behalf, or on behalf of any competitor, call upon any Person as a prospective acquisition candidate who was, to the knowledge of such Seller or X. Xxxx, either called upon by the Purchaser or any of its Subsidiaries as a prospective acquisition candidate or was the subject of an acquisition analysis by the Purchaser or any of its Subsidiaries to the extent related to the Restricted Business; or (iv) disparage, defame or discredit the Purchaser or any of its Subsidiaries or engage in any activity which would have the effect of disparaging, defaming or discrediting the Purchaser or any of its Subsidiaries.
(c) Each Seller and X. Xxxx acknowledges that the restrictions contained in this Section 4.3 are reasonable and necessary to protect the legitimate interests of the Purchaser and its Subsidiaries. Each Seller and X. Xxxx acknowledges that any violation of this Section 4.3 will result in irreparable injury to the Purchaser and its Subsidiaries and agrees that the Purchaser shall be entitled to preliminary and permanent injunctive relief, without the necessity of proving actual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of this Section 4.3 by any Seller or X. Xxxx, which rights shall be cumulative and in addition to any other rights or remedies to which the Purchaser may be entitled.
(d) In the event that any covenant contained in this Section 4.3 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable law. The covenants contained in this Section 4.3 and each provision thereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
(e) The restrictive covenants set forth in this Section 6 is found by 4.3 shall terminate and be of no further force or effect if the Purchaser breaches any court of competent jurisdiction payment obligations pursuant to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event terms of any Seller Note and the Purchaser fails to cure such breach, breach in addition to accordance with the terms of such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary hereinSeller Note.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Tabula Rasa HealthCare, Inc.), Membership Interest Purchase Agreement (Tabula Rasa HealthCare, Inc.)
Restrictive Covenants. (a) During the term of this Agreement and for a period of one (1) year after the termination or expiration thereof, the Employee will not directly or indirectly:
(i) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender, or in any other capacity whatsoever Each Seller (other than as the holder of not more than one percent (1%ESOT) of the total outstanding stock of a publicly held company)agrees that, engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within for the three (3) months preceding year period commencing on the Closing Date (the “Restricted Period”), such Person shall not (i) directly or indirectly provide, to any potential solicitation Governmental Authority or hiringPerson, any product or service that is directly competitive with the products or services sold by the Company or any Company Subsidiary as of the Closing Date; provided, however, that, for the purposes of this Section 6.06, ownership of securities having no more than two percent (2%) of the outstanding voting power of any publicly traded competitor shall not be deemed a violation of this Section 6.06, or (ii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between the Company and the Company Subsidiaries and their respective customers or suppliers.
(b) If As a separate and independent covenant, each Seller agrees that during the Restricted Period such Person will not directly or indirectly hire or induce or attempt to induce any restriction officers, employees or independent contractors of the Company or any Company Subsidiary to leave the employ or service of the Company or such Company Subsidiary or violate the terms of their contracts, or any employment arrangements, with the Company or such Company Subsidiary; provided, however, that the foregoing will not prohibit (i) a general solicitation to the public of general advertising or the hiring or other retention of any person who responds to any such general solicitation, or (ii) the hiring of any person whose employment has been terminated by the Company, a Company Subsidiary or Purchaser at least six (6) months prior to such hiring.
(c) Each Seller acknowledges that the covenants set forth in this Section 6 is found by any court 6.06 are an essential element of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic areathis Agreement and that, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary but for the protection agreement of the business and goodwill of the Company and are considered Sellers to comply with these covenants, Purchaser would not have entered into this Agreement. Each Seller acknowledges that this Section 6.06 constitutes an independent covenant that shall not be affected by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 performance or 8 will cause the Company substantial and irrevocable damage and therefore, in the event nonperformance of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court provision of competent jurisdiction, regardless of any statement to the contrary hereinthis Agreement by Purchaser.
Appears in 2 contracts
Samples: Stock Purchase Agreement (PAE Inc), Stock Purchase Agreement (PAE Inc)
Restrictive Covenants. (a) During From and after the term Closing Date, each Stockholder and Grandi will not and will cause its Affiliates not to, for its own account or for the account of this Agreement and for others, directly or indirectly, own, manage, operate, join, control or participate in the ownership, management, operation or control of any business conducting business under the name “Fibre Metal,” or any variant thereof. For a period of one five (15) year years from and after the termination or expiration thereofClosing Date, the Employee each Stockholder and Grandi will not and will cause its Affiliates not to, for its own account or for the account of others, directly or indirectly:
, (i) as an individual proprietorengage in any business which competes with the Business, partneror (ii) own, stockholdermanage, operate, join, control or participate in the ownership, management, operation or control of any Person who or which at any relevant time during such period is engaged in any business which competes with the Business, except for investments in publicly traded securities where the beneficial ownership by the Stockholder or Grandi is five percent (5%) or less of all of the issued and outstanding publicly traded securities of the particular entity.
(b) For a period of five (5) years from and after the Closing Date, each Stockholder and Grandi will not and will cause its Affiliates not to, directly or indirectly, solicit or attempt to solicit any Person who is or has been a customer, supplier, licensor, licensee of the Business prior to or during such period to cease its particular business relationship with the Company that relates to the Business.
(c) For a period of five (5) years from and after the Closing Date, each Stockholder and Grandi will not and will cause its Affiliates not to, directly or indirectly, solicit or induce any Person who is then a director, officer, employee, director, joint venturer, investor, lender, employee or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate agent of the Company to terminate their employment his, her or its relationship with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed employment by the Company.
(ivd) For From and after the purposes Closing, each Stockholder and Grandi shall, and shall cause its Affiliates and representatives to, keep confidential and not disclose to any other Person or use for its own benefit or the benefit of these restrictionsany other Person any confidential proprietary information, technology, know-how, trade secrets (including, without limitation, all results of research and development), product formulas, industrial designs, franchises, inventions or other industrial and intellectual property in its possession or control regarding the word “prospective” Company or the Business. The obligations of each Stockholder and Grandi under this Section 8.6(d) shall not apply to information which (i) is or becomes generally available to the public without breach of the commitment provided for in this Section 6.8(d), (ii) is made available to Stockholders or Grandi by an independent third party, provided, however, that such information was not obtained by said third party in violation of a confidentiality agreement or a fiduciary relationship; or (iii) is required to be disclosed by law, order or regulation of a court or tribunal or governmental authority; provided, however, that, in any individual such case, any Stockholder or entity with which Grandi shall in such circumstance notify the Company has had substantive contact within the twelve month period as early as reasonably practicable prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by disclosure to allow the Company within to take appropriate measures to preserve the three (3) months preceding any potential solicitation or hiringconfidentiality of such information at the cost of the Company.
(be) If any restriction set forth The restrictive covenants contained in this Section 6 is found 6.8 are covenants independent of any other provision of this Agreement and the existence of any claim which any Stockholder or Grandi may allege against any other party to this Agreement, whether based on this Agreement or otherwise, shall not prevent the enforcement of these covenants. Stockholders and Grandi agree that Buyer’s remedies at law for any breach or threat of breach by any court Stockholders or Grandi of competent jurisdiction to the provisions of this Section will be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic areainadequate, it and that Buyer shall be interpreted entitled to extend only over the maximum period of time, range of activities an injunction or geographic area as injunctions to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection prevent breaches of the business provisions of this Section 6.8 and goodwill of to enforce specifically the Company terms and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breachprovisions hereof, in addition to any other remedy to which Buyer may be entitled at law or equity. In the event of litigation regarding the covenant not to compete, the prevailing party in such litigation shall, in addition to any other remedies the prevailing party may obtain in such litigation, be entitled to recover from the other party its reasonable legal fees and out of pocket costs incurred by such party in enforcing or defending its rights hereunder. The length of time for which may this covenant not to compete shall be availablein force shall not include any period of violation or any other period required for litigation during which Buyer seeks to enforce this covenant. Should any provisions of this Section be adjudged to any extent invalid by any competent tribunal, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement such provision will be deemed modified to the contrary hereinextent necessary to make it enforceable.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Safety Products Holdings, Inc.), Stock Purchase Agreement (Norcross Safety Products LLC)
Restrictive Covenants. (a) During The Executive hereby agrees that the term of this Agreement and for a period of one (1) year after Executive shall not, at any time during the termination or expiration thereofRestricted Period, the Employee will not directly or indirectly:
indirectly engage in, have any interest in (iincluding, without limitation, through the investment of capital or lending of money or property), or manage, operate or otherwise render any services (including any services similar to the services the Executive performed for the Company during the Term) to, any Person (whether on his own or in association with others, as an individual proprietora principal, partner, stockholderdirector, officer, employee, directoragent, joint venturerrepresentative, partner, member, security holder, consultant, advisor, independent contractor, owner, investor, lender, participant or in any other capacity whatsoever capacity) that engages in (either directly or through any subsidiary or affiliate thereof) the business of providing value-added tactical equipment logistics and supply chain solutions or distributing tactical and operational equipment or any other than as business in which the holder Company or any of its subsidiaries or affiliates is engaged in on the Date of Termination that is material to the Company’s operations, in any locale of any country in which the Company or its subsidiaries or affiliates conducts business. Notwithstanding the foregoing, the Executive shall be permitted to acquire a passive stock or equity interest in such a business; provided that such stock or other equity interest acquired is not more than one five percent (15%) of the total outstanding stock interest in such business.
(b) The Executive hereby agrees that the Executive shall not, at any time during the Restricted Period, directly or indirectly, either for himself or on behalf of a publicly held company)any other Person, engage in the business of developing(i) recruit or otherwise solicit or induce any employee, producing, marketing customer or selling services supplier of the kind Company to terminate its employment or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by arrangement with the Company; or
, or otherwise change its relationship with the Company, or (ii) hire, engage, recruit, solicit or induce, or attempt cause to inducebe hired, any current or prospective employee, officer, director, contractor or other business associate of person who was employed by the Company at any time during the twelve (12)-month period immediately prior to terminate their employment with, the Date of Termination or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while who thereafter becomes employed by the Company.
(ivc) For The provisions contained in Sections 6(a) and (b) may be altered and/or waived to be made less restrictive on the purposes Executive with the prior written consent of these restrictionsthe Board or the Committee.
(d) Except as the Executive reasonably and in good faith determines to be required in the faithful performance of the Executive’s duties hereunder or in accordance with Section 6(f), the word Executive shall, during the Term and after the Date of Termination, maintain in confidence and shall not directly or indirectly, use, disseminate, disclose or publish, for the Executive’s benefit or the benefit of any other Person, any confidential or proprietary information or trade secrets of or relating to the Company, including, without limitation, information with respect to the Company’s operations, processes, protocols, products, inventions, business practices, finances, principals, vendors, suppliers, customers, potential customers, marketing methods, costs, prices, contractual relationships, regulatory status, compensation paid to employees or other terms of employment (“prospective” shall apply Proprietary Information”), or deliver to any individual Person, any document, record, notebook, computer program or entity similar repository of or containing any such Proprietary Information. The Executive’s obligation to maintain and not use, disseminate, disclose or publish, or use for the Executive’s benefit or the benefit of any other Person, any Proprietary Information after the Date of Termination will continue so long as such Proprietary Information is not, or has not by legitimate means become, generally known and in the public domain (other than by means of the Executive’s direct or indirect disclosure of such Proprietary Information) and continues to be maintained as Proprietary Information by the Company. The parties hereby stipulate and agree that as between them, the Proprietary Information identified herein is important, material and affects the successful conduct of the businesses of the Company (and any successor or assignee of the Company).
(e) Upon termination of the Executive’s employment with the Company for any reason, the Executive will promptly deliver to the Company (i) all correspondence, drawings, manuals, letters, notes, notebooks, reports, programs, plans, proposals, financial documents, or any other documents that are Proprietary Information, including all physical and digital copies thereof, and (ii) all other Company property (including, without limitation, any personal computer or wireless device and related accessories, keys, credit cards and other similar items) which is in his possession, custody or control.
(f) The Executive may respond to a lawful and valid subpoena or other legal process but shall give the Company the earliest possible notice thereof, and shall, as much in advance of the return date as possible, make available to the Company and its counsel the documents and other information sought, and shall assist such counsel in resisting or otherwise responding to such process.
(g) The Executive agrees not to disparage the Company, any of its products or practices, or any of its directors, officers, agents, representatives, partners, members, equity holders or Affiliates, either orally or in writing, at any time; provided that the Executive may confer in confidence with the Executive’s legal representatives and make truthful statements as required by law. The Company agrees to instruct its executive officers and directors not to disparage the Executive, either orally or in writing, at any time; provided that the executive officers and directors may confer in confidence with their legal representatives and make truthful statements as required by law.
(h) Prior to accepting other employment or any other service relationship during the Restricted Period, the Executive shall provide a copy of this Section 6 to any recruiter who assists the Executive in obtaining other employment or any other service relationship and to any employer or other Person with which the Company has had substantive contact within the twelve month period prior to Executive discusses potential employment or any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringother service relationship.
(bi) If any restriction set forth in In the event the terms of this Section 6 is found shall be determined by any court of competent jurisdiction to be unenforceable because it extends by reason of its extending for too long great a period of time or over too great a range geographical area or by reason of activities or its being too extensive in too broad a geographic areaany other respect, it shall will be interpreted to extend only over the maximum period of timetime for which it may be enforceable, range of activities or geographic over the maximum geographical area as to which it may be enforceable, or to the maximum extent in all other respects as to which it may be enforceable, all as determined by such court in such action. Any breach or violation by the Executive of the provisions of this Section 6 shall toll the running of any time periods set forth in this Section 6 for the duration of any such breach or violation.
(cj) The restrictions contained As used in Sections this Section 6, 7 and 8 are necessary for the protection of the business and goodwill of term “Company” shall include the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 direct or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary hereinindirect subsidiary entity thereof.
Appears in 2 contracts
Samples: Employment Agreement (ADS Tactical, Inc.), Employment Agreement (ADS Tactical, Inc.)
Restrictive Covenants. (a) During Both during the term of this Agreement Employment and for a period of one (1) year after during the termination or expiration thereofRestricted Period, the Employee Executive will not, without the prior written consent of the Company (such consent not to be unreasonably withheld), whether by herself, through her employees or agents or otherwise and whether on her own behalf or on behalf of any person, directly or indirectly:
(ia) so as an individual proprietorto compete with the Company, partnersolicit business from or canvas any Customer or Prospective Customer in respect of Restricted Products or Restricted Services;
(b) so as to compete with the Company, stockholderaccept orders from, officeract for or have any business dealings with, employeeany Customer or Prospective Customer in respect of Restricted Products or Restricted Services;
(c) within the Restricted Area, director, joint venturer, investor, lender, be employed or engaged or at all interested (except as a Minority Holder) in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock that part of a publicly held company), engage business or person which is involved in the business of researching into, developing, producingmanufacturing, marketing distributing, selling, supplying or selling services otherwise dealing with Restricted Products or Restricted Services, if the business or person is or seeks to be in competition with the Company. For the purposes of the kind or type developed or being developedthis sub-Clause, produced, marketed or sold acts done by the Company while Executive outside the Restricted Area shall nonetheless be deemed to be done within the Restricted Area where their primary purpose is to distribute, sell, supply or otherwise deal with Restricted Products or Restricted Services in the Restricted Area;
(d) solicit or induce or endeavour to solicit or induce any person who was a Restricted Employee was employed by (and with whom the Executive had dealings during the Relevant Period) to cease working for or providing services to the Company, whether or not any such person would thereby commit a breach of contract;
(e) employ or otherwise engage any Restricted Employee in the business of researching into, developing, manufacturing, distributing, selling, supplying or otherwise dealing with Restricted Products or Restricted Services if that business is, or seeks to be, in competition with the Company; or
(iif) hire, engage, recruit, solicit or induce, induce or attempt endeavour to induce, solicit or induce any current or prospective employee, officer, director, contractor or other business associate of Supplier to cease to deal with the Company to terminate their employment with, or otherwise cease their business and shall not interfere in any way with any relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by between a Supplier and the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary herein.
Appears in 2 contracts
Samples: Service Agreement (LivaNova PLC), Service Agreement (LivaNova PLC)
Restrictive Covenants. The following covenants against solicitation and competition shall be effective for a period of 12 months following the last day of the later of: (i) the expiration of the Term of this Agreement; or (ii) any period for which Consultant is receiving compensation from the Company (the "Restriction Period"). The Restriction Period shall be extended by the length of any period during which Consultant is in breach of the terms of this Section 8. In consideration of this Agreement, and in light of the understandings of the parties set forth herein, Consultant agrees that during the Restriction Period, Consultant will not do any of the following (the "Restrictive Covenants"):
(a) During during the term of Consultant's engagement with the Company, engage, directly or indirectly, in any business which is the same or similar to the Business or is competitive with the Business of the Company (a "Competitive Business") within Israel (the "Restrictive Territory"), or in any market in which the Company is then currently or has during the term of this Agreement and for a period been engaged in the Business;
(b) without the prior written consent of one (1) year after the termination or expiration thereofCompany, the Employee will not directly or indirectly:
(i) indirectly own an interest in, manage, operate, join, control, lend money or render financial or other assistance to or participate in or be connected with, as an individual proprietora partner, partnermember, stockholder, officerconsultant or otherwise, employee, director, joint venturer, investor, lender, or any person that engages in any other capacity whatsoever (other Competitive Business within the Restrictive Territory; provided, however, that, for the purposes of this Agreement, ownership of securities having no more than five percent of the outstanding voting power of any person engaged in a Competitive Business or Businesses which are listed on any national securities exchange or traded actively in the national over-the-counter market shall not be deemed to be in violation of this Agreement so long as the holder person owning such securities has no other connection or relationship with such competitor;
(c) solicit or attempt to solicit any present, past or pending customer of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(iid) hire, engage, recruit, solicit or induce, hire or attempt to induce, hire or entice any current or prospective employee, officerbroker, director, contractor vendor or other agent or business associate affiliate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary herein.
Appears in 2 contracts
Samples: Consulting Agreement (Universal Communication Systems Inc), Consulting Agreement (Universal Communication Systems Inc)
Restrictive Covenants. (a) During the term period beginning on the Closing Date and ending on the fifth anniversary of the Closing Date (the “Restricted Period”), each Seller covenants and agrees not to, and shall cause its respective Affiliates not to, directly or indirectly and anywhere in the Restricted Territory, conduct, manage, operate, engage in, or have an ownership interest in any business or enterprise engaged in (i) the Business (other than the Buyer or the Buyer Shares), or (ii) any activities that are otherwise similar to, or competitive with, the Business. Notwithstanding the provisions of this Agreement and for a period of one (1) year after the termination or expiration thereofSection 5.2(a), the Employee will beneficial ownership of less than five percent of the shares of stock or other equity interests of any corporation or other entity having a class of equity securities actively traded on a national securities exchange or over-the-counter market and not formed for the purpose of circumventing this Agreement shall not be deemed to violate the provisions of this Section 5.2(a).
(b) During the Restricted Period, each Seller covenants and agrees not to, and shall cause its respective Affiliates not to, directly or indirectly:
(i) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruitcall-on, solicit or induce, or attempt to solicit or induce, any current Person which is or was a past, present or prospective employee, officer, director, contractor customer or other business associate relation of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any Subsidiary as of the clients, customers Closing Date for the provision of products or accounts, or prospective clients, customers or accounts, of services related to the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities Business or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceableany other manner that would otherwise interfere with business relationships between Buyer and such customers and other business relations.
(c) The restrictions contained in Sections 6During the Restricted Period, 7 each Seller covenants and 8 are necessary for agrees not to, and shall cause its respective Affiliates not to, directly or indirectly, call-on, solicit or induce, or attempt to solicit or induce, any Person who was employed or engaged as an independent contractor by the protection of Company or Subsidiary on or at any time before the business and goodwill Closing Date, to leave the employ or engagement of the Company or Subsidiary or their Affiliates (including Buyer) for any reason whatsoever, nor shall any Seller offer or provide employment (except on behalf of the Company or the Subsidiary), either on a full-time basis or part-time or consulting basis, to any such Person.
(d) Sellers acknowledge and agree that the provisions of this Section 5.2 are considered by reasonable and necessary to protect the Employee to be reasonable legitimate business interests of Buyer and its acquisition of the Company Shares. Neither Seller shall contest that Buyer’s remedies at law for such purpose. The Employee agrees that any breach or threat of Sections 6breach by any Seller or any of their respective Affiliates of the provisions of this Section 5.2 may be inadequate, 7 and that Buyer shall be entitled to an injunction or 8 will cause injunctions to prevent breaches of the Company substantial provisions of this Section 5.2 and irrevocable damage to enforce specifically such terms and therefore, in the event of any such breachprovisions, in addition to such any other remedies remedy to which Buyer may be availableentitled at law or equity. The restrictive covenants contained in this Section 5.2 are covenants independent of any other provision of this Agreement or any other agreement between the Parties hereunder and the existence of any claim which any Seller may allege against Buyer under any other provision of the Agreement or any other agreement will not prevent the enforcement of these covenants.
(e) If any of the provisions contained in this Section 5.2 shall for any reason be held to be excessively broad as to duration, scope, activity or subject, then such provision shall be construed by limiting and reducing it, so as to be valid and enforceable to the Company shall have extent compatible with the right to seek specific performance and injunctive relief in any applicable Law or the determination by a court of competent jurisdiction, regardless of any statement to the contrary herein.
Appears in 2 contracts
Samples: Share Purchase Agreement (Transcat Inc), Share Purchase Agreement (Transcat Inc)
Restrictive Covenants. Amber GT Parent covenants and agrees that, during the period beginning as of the Closing Date and ending on the twelve (a12) During month anniversary thereof (the term of this Agreement “Restrictive Covenant Period”), other than with respect to the arrangements set forth in the Co-Development and for a period of one (1) year after the termination or expiration thereofCommercialization Agreement, the Employee will it shall not, and shall cause its Affiliates not to, directly or indirectly:
, (i) as an individual proprietoracquire, partnerfinance, stockholderown any interest in, officermanage, employeecontrol, directorparticipate in, joint venturerconsult with, investorrender services for, lender, operate or in any manner engage in the Business (collectively, the “Restricted Business”) anywhere in the world, (ii) conduct or engage in a Competing Business or (iii) take any action that is designed or intended to have the effect of discouraging any licensor, client, supplier, vendor, customer or other capacity whatsoever business relation of the Business from maintaining the same business relationships with the Company or any of its Affiliates after the Closing as it maintained with such Person prior to the Closing or at any time during the Restrictive Covenant Period. Notwithstanding the foregoing, (other A) direct or indirect ownership of less than as the holder of not more than one five percent (15%) of the total outstanding stock Equity Securities of a publicly held company)traded corporation shall not, engage in and of itself, be deemed to be engaging in the business Restricted Business or otherwise constitute a violation of developingthis Section 6.18(a) and (B) this Section 6.18(a) shall not prohibit or otherwise restrict Amber GT Parent from entering into or consummating an Amber GT Parent Change of Control Transaction; provided that, producing, marketing or selling services from and after the consummation of any such Amber GT Parent Change of Control Transaction and continuing until the end of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship withRestrictive Covenant Period, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction restrictions set forth in this Section 6 is found by any court of competent jurisdiction 6.18(a) shall continue to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic areaapply to Amber GT Parent and its controlled Affiliates (but not, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection avoidance of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be availabledoubt, the Company shall have the right to seek specific performance and injunctive relief in acquiring Person(s) or any court of competent jurisdiction, regardless its or their Affiliates as of any statement immediately prior to the contrary hereinconsummation of such Amber GT Parent Change of Control Transaction).
Appears in 2 contracts
Samples: Business Combination Agreement (Amicus Therapeutics, Inc.), Business Combination Agreement (ARYA Sciences Acquisition Corp IV)
Restrictive Covenants. (a) During From the term Closing until the date that is five (5) years following the Closing Date, Xxxxxxx Limited shall not (and shall cause each of this Agreement and for a period its Controlled Affiliates not to), anywhere in the world, directly or indirectly own, manage, operate, control or engage in the manufacture, distribution or sale of one any product to the extent set forth on Schedule 5.10 (1) year after the termination or expiration thereofsuch products, the Employee will not directly “Restricted Products”). Nothing herein shall prohibit any Seller, Xxxxxxx Limited or indirectly:
any other Controlled Affiliate of Xxxxxxx Limited from (i) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender, or in any other capacity whatsoever (other than as the holder being a passive owner of not more than one percent 5% of the outstanding stock of any class of securities of a Person engaged in such business, so long as Xxxxxxx Limited, such Seller or such Controlled Affiliate has no active participation in the operation of such business, (1%ii) purchasing, selling, distributing and/or delivering any Restricted Products in each case so long as such products are purchased from any of the Companies, (iii) performing any services for or otherwise performing Contracts with the Companies or any of their Affiliates, (iv) manufacturing, selling or distributing any products not set forth on Schedule 5.10 or (v) acquiring any business which manufactures, distributes or sells any Restricted Products so long as (A) the competing portion of the business represented less than 20% of the total outstanding stock revenues of a publicly held company), engage in the acquired business for the twelve (12) month period preceding the date of such acquisition and (B) the competing portion of the business did not produce revenues in excess of developing$25,000,000 during such time period; provided that, producingXxxxxxx Limited shall (and shall cause each of its Controlled Affiliates, marketing as applicable, to) divest or selling services cease use of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
such competing assets and/or operations within a period of twelve (ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (312) months preceding any potential solicitation or hiringfollowing such acquisition.
(b) If From the Closing until the date that is two (2) years following the Closing Date, Xxxxxxx Limited shall not (and shall cause each of its directors, officers and Controlled Affiliates not to), directly or indirectly, hire or solicit for the purpose of offering employment to or hiring (whether as an employee, consultant, agent, independent contractor or otherwise) any restriction set forth in this Section 6 is found management employee of any Company employed by any court such Company as of competent jurisdiction to be unenforceable because it extends for too long a period the Closing, without the prior written consent of time or over too great a range of activities or in too broad a geographic area, it Acquiror (provided that nothing herein shall be interpreted construed as restricting Xxxxxxx Limited or any of its Controlled Affiliates, or their respective directors or officers, from engaging in a general solicitation of employment opportunities not directly targeted at the employees of any of the Companies, or soliciting for hire or hiring any person whose employment with any Company was terminated by the Company at least six months prior to extend only over the maximum period of time, range of activities such solicitation or geographic area as to which it may be enforceablehiring).
(c) The If the final judgment of a court of competent jurisdiction declares that any term or provision of this Section 5.10 is invalid or unenforceable, the parties hereto agree that the court making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration, or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed.
(d) It is agreed by the parties hereto that (i) the foregoing covenants impose a reasonable restraint on Xxxxxxx Limited in light of the activities and business of the Companies on the date of the execution of this Agreement and the current plans of Acquiror for the Business from and after the Closing and are necessary to protect Acquiror’s interest in, and the value of, the Equity Interests and the Companies (including, without limitation, the goodwill inherent therein), and (ii) Acquiror would not have consummated the transactions contemplated hereby without the restrictions contained in Sections 6this Section 5.10. Additionally, 7 and 8 are necessary for the protection because of the business and goodwill difficulty of measuring economic losses to Acquiror as a result of a breach of the Company foregoing covenants contained in this Section 5.10, and are considered by because of the Employee immediate and irreparable damage that could be caused to be reasonable Acquiror for such purpose. The Employee which it would have no other adequate remedy, Xxxxxxx Limited agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which foregoing covenants may be availableenforced by Acquiror by injunctions, the Company shall have the right to seek specific performance restraining orders, and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary hereinother equitable actions.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Gates Global Inc.), Stock Purchase Agreement (Pinafore Holdings B.V.)
Restrictive Covenants. (a) During the term of this Agreement Employee agrees that, from and for a period of one (1) year after the termination date hereof and continuing through the Restriction Period, Employee shall not, and shall cause its Affiliates to not, do any one or expiration thereofmore of the following, the Employee will not directly or indirectly:
(ia) engage, participate or prepare to engage or participate, anywhere in the Territory, as an individual proprietoremployee, partner, stockholdermember, officershareholder, independent contractor, employee, directorconsultant, joint venturer, investoragent, lender, lessor, advisor or (without limitation by the specific enumeration of the foregoing) otherwise in the Business;
(b) Solicit, attempt to Solicit, or assist anyone else to Solicit, any Person who is or has been a Customer to (i) cease doing business with any member of the Beacon Group, (ii) alter or limit its business relationship with any member of the Beacon Group, or (iii) purchase, other than from a member of the Beacon Group, any Competing Products;
(c) Solicit, attempt to Solicit, or assist anyone else to Solicit, any Person who is or has been a supplier, contractor, subcontractor, dealer, distributor, licensor, licensee, lessor or any other capacity whatsoever (other than as the holder of not more than one percent (1%) business relation of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing Beacon Group or selling services any subsidiary or predecessor of the kind Beacon Group within the twelve (12) months immediately prior to the date hereof to (i) cease doing business with any member of the Beacon Group or type developed (ii) alter or being developedlimit its business relationship with any member of the Beacon Group;
(d) market, producedpromote, marketed sell, offer to sell, or sold by provide any Competing Products to any Customer, or prepare to or assist anyone else to do so;
(e) Solicit, attempt to Solicit, or assist anyone else to Solicit any Business Associate to terminate, restrict or hinder his, her or its association with any member of the Company while the Employee was employed by the CompanyBeacon Group; or
(iif) hire, engage, recruit, solicit interview, Solicit, hire or induceotherwise retain the services of any Business Associate, whether on a full-time basis, part-time basis or attempt to induce, any current or prospective otherwise and whether as an employee, officer, director, contractor independent contractor, consultant, advisor, agent or other business associate in another capacity, or assist anyone else to do so if such action would restrict, hinder or terminate such Business Associate’s activities for and on behalf of any member of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the CompanyBeacon Group.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary herein.
Appears in 2 contracts
Samples: Restrictive Covenant Agreement, Restrictive Covenant Agreement (Beacon Roofing Supply Inc)
Restrictive Covenants. (a) During Both during the term of this Agreement Employment and for a period of one (1) year after during the termination or expiration thereofRestricted Period, the Employee Executive will not, without the prior written consent of the Company (such consent not to be unreasonably withheld), whether by himself, through his employees or agents or otherwise and whether on his own behalf or on behalf of any person, directly or indirectly:
(ia) so as an individual proprietorto compete with the Company, partnersolicit business from or canvas any Customer or Prospective Customer in respect of Restricted Products or Restricted Services;
(b) so as to compete with the Company, stockholderaccept orders from, officeract for or have any business dealings with, employeeany Customer or Prospective Customer in respect of Restricted Products or Restricted Services;
(c) within the Restricted Area, director, joint venturer, investor, lender, be employed or engaged or at all interested (except as a Minority Holder) in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock that part of a publicly held company), engage business or person which is involved in the business of researching into, developing, producingmanufacturing, marketing distributing, selling, supplying or selling services otherwise dealing with Restricted Products or Restricted Services, if the business or person is or seeks to be in competition with the Company. For the purposes of the kind or type developed or being developedthis sub-clause, produced, marketed or sold acts done by the Company while Executive outside the Restricted Area shall nonetheless be deemed to be done within the Restricted Area where their primary purpose is to distribute, sell, supply or otherwise deal with Restricted Products or Restricted Services in the Restricted Area;
(d) solicit or induce or endeavour to solicit or induce any person who on the Termination Date, was a Restricted Employee was employed by (and with whom the Executive had dealings during the Relevant Period) to cease working for or providing services to the Company, whether or not any such person would thereby commit a breach of contract;
(e) employ or otherwise engage any Restricted Employee in the business of researching into, developing, manufacturing, distributing, selling, supplying or otherwise dealing with Restricted Products or Restricted Services if that business is, or seeks to be, in competition with the Company; or
(iif) hire, engage, recruit, solicit or induce, induce or attempt endeavour to induce, solicit or induce any current or prospective employee, officer, director, contractor or other business associate of Supplier to cease to deal with the Company to terminate their employment with, or otherwise cease their business and shall not interfere in any way with any relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by between a Supplier and the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary herein.
Appears in 2 contracts
Samples: Service Agreement, Service Agreement (Concrete Pumping Holdings Acquisition Corp)
Restrictive Covenants. For the purpose of assuring to the Investors and the Company of the value of the Business and the full benefit of the goodwill of the business of the Company, each of the Founders undertakes and covenants with the Investors and the Company that (asave for any interest in the shares or other securities of a company traded on a securities market so long as such interest does not extend to more than 0.1 per cent of the issued share capital of the company or the class of securities concerned or save with Investor Majority Consent) During they shall not: while they are a Director or Service Provider carry on or be concerned or engaged directly or indirectly (in any capacity whatsoever) in any trade or business competing with the term trade or business of this Agreement and for the Group Companies as carried on at the time or, in relation to any trade or business of the Group Companies that they have been engaged or involved in, at any time during a period of one (1) year after two years immediately preceding that time; or during the termination period of [insert number of months] commencing on the Termination Date: within the Territory carry on or expiration thereofbe concerned, the Employee will not engaged or interested directly or indirectly:
(i) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender, indirectly in any capacity whatsoever in any trade or business competing with the business carried on by the Group Companies in which they shall have been engaged or involved at any time during the Period; either on their own behalf or in any other capacity whatsoever directly or indirectly do or say anything which may lead to any person ceasing to do business with the Company (or any other Group Company) on substantially the same terms as previously (or at all); either on their own behalf or in any other capacity whatsoever directly or indirectly endeavour to entice away from the Group Companies or solicit any person, firm or company who was a client, customer, supplier, agent or distributor of any Group Company during the Period with whom they shall have been engaged or involved by virtue of their duties during the Period in competition with or to the detriment of the Group Companies; either on their own behalf or in any other capacity whatsoever directly or indirectly have any dealings with any person, firm or company who was a client, customer, supplier, agent or distributor of any of the Group Companies during the Period with whom they shall have been engaged or involved by virtue of their duties during the Period in competition with or to the detriment of any if the Group Companies; or either on their own behalf or in any other capacity whatsoever directly or indirectly employ, engage or induce, or seek to induce, to leave the service of any Group Company any person who is or was a Key Service Provider with whom they shall have had dealings during the Period whether or not such person would commit any breach of their contract of employment by reason of so leaving the service of any Group Company or otherwise; or at any time after the Termination Date represent themself as being in any way currently connected with or interested in the business of the Group Companies (other than as a Shareholder or Director if and to the holder of not more than one percent (1%) extent that be the case). Each of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 each paragraph of clause 10.1 is separate and 8 distinct and is to be construed separately from the other such restrictions. Each of the Founders acknowledges that they consider such restrictions to be reasonable both individually and in the aggregate and that the duration extent and application of each of such restrictions are no greater than is necessary for the protection of the business and goodwill of the businesses of the Company and are considered that the consideration paid by the Employee Investors for the Shares subscribed by them takes into account and adequately compensates them for any restriction or restraint imposed in clause 10.1. However, if any such restriction shall be found to be reasonable void or unenforceable but would be valid or enforceable if some part or parts of the restriction were deleted or the period or area of application reduced, each of the Founders agrees that such restriction shall apply with such modification as may be necessary to make it valid. Any discovery, invention, secret process or improvement in procedure made or discovered by any Founder while a Service Provider in connection with or in any way affecting or relating to the business of any Group Company or capable of being used or adapted for such use in or in connection with the Company’s business shall as soon as reasonably practicable be disclosed to the Company and shall belong to and be the absolute property of the Group Company which the Company nominates for the purpose. The Employee agrees This agreement shall not operate as a transfer instrument and any transfer of Intellectual Property rights shall be effected under a separate agreement. Each Founder (whether before or after their ceasing to be a Service Provider) shall at the expense of the Company or its nominee apply or join in applying for patent or other similar protection in the United Kingdom, the Republic of Ireland or any other part of the world for any such discovery, invention, process or improvement as referred to in clause 10.3 enter into Intellectual Property assignments and execute all instruments and do all things necessary for vesting Intellectual Property or those letters patent or other similar protection when obtained and all right and title to and interest in them in the Company (or its nominee) absolutely and as sole beneficial owner. A Founder shall have no claim against any Group Company in respect of the termination of their contract of employment or consultancy in relation to any provision in the Articles, this agreement or any other agreement or arrangement which has the effect of requiring that Founder to transfer, sell, convert, re-designate or otherwise dispose of the whole or any part of their interest in any shares or other equity securities in the capital of the Company at any price or into any other class of share (if applicable) or which causes any options or other rights granted to them to become prematurely exercisable or lapse. No claim shall be made by any Investor against any Founder in respect of any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary hereinthis clause 10 without Investor Majority Consent.
Appears in 2 contracts
Restrictive Covenants. (a) During the term of this Agreement and for a period of one (1) year after the termination or expiration thereof, the Employee will not directly or indirectly:
(i) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “"prospective” " shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “"current” " employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary herein.
Appears in 2 contracts
Samples: Employment Agreement (Ocean Power Technologies, Inc.), Employment Agreement (Ocean Power Technologies, Inc.)
Restrictive Covenants. (a) During Both during the term of this Agreement Employment and for a period of one (1) year after during the termination or expiration thereofRestricted Period, the Employee Executive will not not, without the prior written consent of the Board, whether by himself, through his employees or agents and whether on his own behalf or on behalf of any person, directly or indirectly:
(ia) so as an individual proprietorto compete with the Company, partnersolicit business from or canvas or approach any Customer or Prospective Customer or business partner in respect of Restricted Products or Restricted Services;
(b) so as to compete with the Company, stockholderaccept orders from, officeract for or have any business dealings with, employeeany Customer or Prospective Customer or business partner in respect of Restricted Products or Restricted Services;
(c) within the Restricted Area, directorbe employed, joint venturer, investor, lender, engaged or interested in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock or provide Confidential Information to that part of a publicly held company)business or person which is involved in Restricted Products or Restricted Services, if the business or person is or seeks to be in competition with the Company. For the purposes of this sub-clause, acts done by the Executive outside the Restricted Area shall nonetheless be deemed to be done within the Restricted Area where their primary purpose is to distribute, sell, supply or otherwise deal with Restricted Products or Restricted Services in the Restricted Area;
(d) solicit or induce or endeavour to solicit or induce any person who was a Restricted Employee (and with whom the Executive had dealings during the Relevant Period) to cease working for or providing services to the Company, whether or not any such person would thereby commit a breach of contract;
(e) employ or otherwise engage any Restricted Employee in the business of developingRestricted Products or Restricted Services if that business is, producingor seeks to be, marketing in competition with the Company;
(f) solicit or selling services of the kind induce or type developed endeavour to solicit or being developed, produced, marketed induce or sold by approach any Supplier to cease to deal with the Company while the Employee was employed by and shall not interfere in any way with any relationship between a Supplier and the Company; or
(iig) hireso as to compete with the Company or reduce the Company’s business, engagesolicit, recruit, solicit or inducedeal with, or attempt to inducesolicit or deal with, any current or prospective employee, officer, director, contractor or other key business associate partners of the Company to terminate their employment withCompany, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of including any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with whom it has entered into a collaboration agreement (or with whom it is in discussions to enter into a collaboration agreement), and with which entity the Executive has had business dealings during the Relevant Period or about which the Company Executive has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringConfidential Information.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary herein.
Appears in 2 contracts
Samples: Employment Agreement (Exscientia LTD), Employment Agreement (Exscientia LTD)
Restrictive Covenants. (a) During Both during the term of this Agreement Employment and for a period of one (1) year after during the termination or expiration thereofRestricted Period, the Employee Executive will not not, without the prior written consent of the Board, whether by himself, through his employees or agents and whether on his own behalf or on behalf of any person, directly or indirectly:
(ia) so as an individual proprietorto compete with the Company, partnersolicit business from or canvas or approach any Customer or Prospective Customer in respect of Restricted Products or Restricted Services;
(b) so as to compete with the Company, stockholderaccept orders from, officeract for or have any business dealings with, employeeany Customer or Prospective Customer in respect of Restricted Products or Restricted Services;
(c) within the Restricted Area, directorbe employed, joint venturer, investor, lender, engaged or interested in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock or provide Confidential Information to that part of a publicly held company)business or person which is involved in Restricted Products or Restricted Services, if the business or person is or seeks to be in competition with the Company. For the purposes of this sub-clause, acts done by the Executive outside the Restricted Area shall nonetheless be deemed to be done within the Restricted Area where their primary purpose is to distribute, sell, supply or otherwise deal with Restricted Products or Restricted Services in the Restricted Area;
(d) solicit or induce or endeavour to solicit or induce any person who was a Restricted Employee (and with whom the Executive had dealings during the Relevant Period) to cease working for or providing services to the Company, whether or not any such person would thereby commit a breach of contract;
(e) employ or otherwise engage any Restricted Employee in the business of developingRestricted Products or Restricted Services if that business is, producingor seeks to be, marketing in competition with the Company;
(f) solicit or selling services of the kind induce or type developed endeavour to solicit or being developed, produced, marketed induce or sold by approach any Supplier to cease to deal with the Company while the Employee was employed by and shall not interfere in any way with any relationship between a Supplier and the Company; or
(iig) hireso as to compete with the Company or reduce the Company’s business, engagesolicit, recruit, solicit or inducedeal with, or attempt to induce, solicit or deal with any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with whom it has entered into a collaboration agreement (or with whom it is in discussions to enter into a collaboration agreement), and with which entity the Executive has had business dealings during the Relevant Period or about which the Company Executive has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringConfidential Information.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary herein.
Appears in 2 contracts
Samples: Employment Agreement (Exscientia LTD), Employment Agreement (Exscientia LTD)
Restrictive Covenants. 14.1 For the purpose of assuring to the Investors and the Company the value of the Business and any other business which may be conducted by a Restricted Company from time to time and the full benefit of the goodwill of the business of each Restricted Company and protecting Confidential Information and workforce stability, each of the Founders hereby severally undertakes and covenants with the Investors and the Company that (save for any interest in the shares or other securities of a company traded on a securities market so long as such interest does not extend to more than 5 per cent of the issued share capital of the company or the class of securities concerned or, save with the written consent of an Investor Majority, the Insight Director and the Xxxx Capital Director) he shall not:
(a) During while he is a director or employee of, or a consultant to, any Restricted Company carry on or be concerned, engaged or interested directly or indirectly (in any capacity whatsoever) hi any trade or business competing with the term trade or business of this Agreement and for a any Restricted Company as carried on at the time or, in relation to any trade or business of any Restricted Company at any time during the previous two years; or
(b) during the period of one (1) year after 18 months commencing on the termination or expiration thereof, the Employee will not directly or indirectlyRelevant Date:
(i) as an individual proprietorwithin the Restricted Area carry on or be concerned, partner, stockholder, officer, employee, director, joint venturer, investor, lender, engaged or interested directly or indirectly in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in any business or entity competing with the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold carried on by the Company while the Employee was employed by the any Restricted Company; or
(ii) hire, engage, recruit, solicit either on his own behalf or induce, in any other capacity whatsoever directly or attempt indirectly do or say anything which may lead to induce, any current person (including any agent supplier or prospective employee, officer, director, contractor distributor) ceasing to do business with any Restricted Company on substantially the same terms as previously (or other at all) or reducing the business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the which they do with any Restricted Company; or
(iii) solicit, divert either on his own behalf or take away, or attempt to divert or to take away, the on behalf of any business or patronage entity competing with any Restricted Company within the Restricted Area directly or indirectly endeavour to entice away from any Restricted Company or solicit business in respect of goods or services which any Restricted Company offers or plans to offer at the Termination Date from any person, firm or company who was a client or customer or Prospective Customer of any Restricted Company during the Period and with whom (in each case) who shall during the Period have had direct dealings on behalf of the clients, customers a Restricted Company or accounts, or prospective clients, customers or accounts, of the Company about which were contacted, solicited or served by the Employee while employed by the Company.he has received Confidential Information; or
(iv) For the purposes either on his own behalf or on behalf of these restrictions, the word “prospective” shall apply to any individual business or entity competing with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Restricted Company within the three Restricted Area directly or indirectly have business dealings in respect of goods or services which any Restricted Company offers or plans to offer at the Termination Date to any person, firm or company who was a client or customer or Prospective Customer of any Restricted Company during the Period and with whom (3in each case) months preceding he shall during die Period have had direct dealings on behalf of any potential solicitation Restricted Company or hiring.about which he has received Confidential Information;
(bv) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities either on his own behalf or in too broad a geographic areaany other capacity whatsoever directly or indirectly employ, it engage or induce, or seek to induce, to leave the service of any Restricted Company any Senior Employee with whom he shall be interpreted to extend only over have had dealings during the maximum period Period or about which he has Confidential Information whether or not such person would commit any breach of time, range his contract of activities employment by reason of so leaving the service of die Restricted Company or geographic area as to which it may be enforceable.otherwise; or
(c) The at any time after the Termination Date represent himself as being in any way currently connected with or interested in the business of any Restricted Company (other than as a shareholder, director, employee or consultant if that be the case).
14.2 Each of the restrictions contained in Sections 6, 7 each paragraph of clause 14.1 is separate and 8 distinct and is to be construed separately from the other such restrictions. Each of the Founders hereby acknowledges that be considers such restrictions to be reasonable both individually and in the aggregate and that the duration extent and application of each of such restrictions are no greater than is necessary for the protection of the business and goodwill of the Company businesses of each Restricted Company, Confidential Information and are considered the stability of the workforce and that the consideration paid by the Employee Investors for the New Shares applied for in this Agreement takes into account and adequately compensates him for any restriction or restraint imposed thereby. However, if any such restriction shall be found to be reasonable for such purpose. The Employee void or unenforceable but would be valid or enforceable if some part or parts thereof were deleted or the period or area of application reduced, each of the Founders hereby agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to restriction shall apply with such other remedies which modification as may be available, the Company shall have the right necessary to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary hereinmake it valid.
Appears in 2 contracts
Samples: Subscription and Shareholders’ Agreement, Subscription and Shareholders’ Agreement (Mimecast LTD)
Restrictive Covenants. (a) During the term of this Agreement and for a period of one (1) year after the termination or expiration thereofNeither HHC nor its Affiliates shall, the Employee will not directly or indirectly:
(i) indirectly by or through any Affiliate or agent, whether as an individual proprietorprincipal, agent, owner, investor, lender, shareholder, member, partner, stockholdermanager, director, officer, employee, director, joint venturer, investor, lenderconsultant, or in any other capacity whatsoever capacity, during the applicable Restricted Period, engage or participate in the Business anywhere in the world.
(other b) Neither Xxxxxx nor its Affiliates shall, directly or indirectly through any principal, partner, manager, director, officer, contractor, or employee thereof acting on behalf of or for the benefit of Xxxxxx or its Affiliates, during the applicable Restricted Period, engage or participate in the Restricted Business anywhere in the world.
(c) Notwithstanding anything to the contrary in Section 7.4(b), nothing in this Agreement shall preclude, prohibit, or restrict Xxxxxx or its Affiliates from directly or indirectly engaging, in any manner in any of the following (with each such subpart of this Section 7.4(c) having independent significance regardless of any overlap of the subject matter thereof):
(i) acquiring less than an aggregate of five percent (5%) of any class of stock of a Person engaged, directly or indirectly, in the Restricted Business if such stock is publicly traded and listed on any stock exchange;
(ii) acquiring, merging or combining with, or investing in, any Person or business that engages, directly or indirectly, in the Restricted Business, so long as the holder gross revenues of not more such Person or business derived from the Restricted Business for the most recent fiscal year ended prior to the date of such acquisition were equal to or less than one twenty percent (120%) of the total outstanding stock consolidated gross revenues of such Person or business for such Fiscal Year; provided, that, subject to the requirements of Law, Xxxxxx and its Affiliates shall, as promptly as reasonably practicable following such acquisition, merger, combination or investment, (x) cause such acquired Person or business to cease engaging in the Restricted Business or (y) sign a publicly held companydefinitive agreement to divest, and subsequently divest, the relevant portion of such acquired Person or business conducting the Restricted Business to an unaffiliated third party; provided, that with respect to any such acquisition, merger or combination occurring prior to expiration or termination of the Alliance Agreement, the requirements set forth in Section 5.12(b)(i)(B) of the Alliance Agreement shall apply with respect to any Insurance Policies written by such acquired Person, or in connection with such acquired business, that would be included in the Alliance Business (as defined in the Alliance Agreement);
(iii) marketing, producing, selling, underwriting or administering any Insurance Policies other than any policy, binder or contract of insurance of the type comprising the Restricted Business (provided that, for purposes of this Section 7.4(c)(iii), engage reference to any policy, binder or contract of insurance shall not include reinsurance of any form, other than reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the type marketed, produced, sold, underwritten or administered in connection with the Alliance Business (as defined in the Alliance Agreement));
(iv) marketing, producing, selling, underwriting or administering Insurance Policies in connection with the general marine insurance coverage business as conducted by Xxxxxx American Insurance Company and Xxxxxx Service, Incorporated as of March 9, 2012;
(v) underwriting or administering any Insurance Policies that are produced by Xxxxxxx Insurance Agency, LLC, Xxxxxxx Classic Marine Insurance Agency, LLC or any of their Affiliates;
(vi) marketing, producing, selling, underwriting or administering reinsurance (or other similar protection offered to insurance or reinsurance companies or other entities in the business of developingproviding primary risk protection), producing, marketing regardless of whether the subject matter of such reinsurance (or selling services other similar protection) relates to the Restricted Business except for reinsurance the primary purpose or effect of which is to provide coverage on Insurance Policies of the kind or type developed or being developedmarketed, produced, marketed sold, underwritten or sold by administered in connection with the Company while Alliance Business (as defined in the Employee was employed by Alliance Agreement);
(vii) developing or selling products that would constitute part of the CompanyRestricted Business to the extent Xxxxxx or any of its Affiliates is reasonably required to develop or sell such products in order to comply with requirements under applicable Law; or
(iiviii) hireentering into and consummating an agreement with any Person with respect to a merger, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor share exchange or other business associate combination transaction immediately following which the beneficial owners of the Company voting capital stock of Xxxxxx or such Affiliate immediately prior to terminate their employment with, or otherwise cease their business relationship with, the Company; or
consummation of such transaction do not beneficially own more than fifty percent (iii50%) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, combined voting power of the Company which were contacted, solicited outstanding voting capital stock entitled to vote generally in the election of directors (or served by Persons performing a similar function) of the Employee while employed by the Companyentity resulting from such transaction.
(ivd) For In the purposes event that, during his or her or its Restricted Period, any Member other than PubCo, including the equityholders or Affiliates of these restrictionsany Member other than PubCo (in such case, a “New Business Proponent”), determines that she or he or it would like to pursue an opportunity that otherwise constitutes the Business (in respect of HHC and its equityholders and Affiliates) or the Restricted Business (in respect of Xxxxxx and its Affiliates) (a “New Business Opportunity”), the word “prospective” New Business Proponent shall apply notify the Board in writing of such intention and provide the Board with sufficient detail regarding the New Business Opportunity for the Board to any individual or entity with which assess whether the Company has had substantive contact within and its Subsidiaries would like to pursue such opportunity rather than allowing the twelve month period prior New Business Proponent to any potential hiring, solicitation, recruiting, diversion or otherwisepursue it. In addition a “current” employee shall include any employee who was employed by If the Board determines that the Company or one of its Subsidiaries will in good faith pursue the New Business Opportunity and within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth years following the date the New Business Opportunity has been presented to the Board takes actions in this Section 6 is found by any court of competent jurisdiction good faith, subject to be unenforceable because commercial limitations, to implement such New Business Opportunity, the New Business Proponent shall not pursue it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it and the New Business Opportunity shall be interpreted deemed to extend only over constitute the maximum period of timeBusiness or Restricted Business, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection applicable. If a majority of the business and goodwill of Board determine that the Company and are considered by its Subsidiaries will not pursue the Employee New Business Opportunity, the New Business Proponent may pursue it and the New Business Opportunity shall be deemed to not constitute the Business or Restricted Business, as applicable; provided, however, that the New Business Proponent shall continue to be reasonable for such purpose. The Employee agrees that any breach bound by all of Sections 6, 7 his or 8 will cause her or its other duties and obligations to the Company substantial and irrevocable damage and thereforeits Subsidiaries, including all duties as a director of PubCo, Member, officer or employee in accordance with the event terms of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary hereinthis Agreement.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Hagerty, Inc.), Limited Liability Company Agreement (Hagerty, Inc.)
Restrictive Covenants. (a) During the term of this Agreement and for For a period of one (1) year 18 months after the termination or expiration thereofClosing Date, the Employee Restricted Party agrees that it will not directly or indirectly:
(i) as an individual proprietordirectly or indirectly employ or engage any (A) Transferred Employee or (B) employee of Buyer or any of its Affiliates (including for this purpose Xxxx Xxxx Holdings, partnerLP, stockholderand its Subsidiaries) with whom the Restricted Party or any of its Affiliates had contact with or became aware of prior to the Closing Date or in connection with the Transactions (collectively, officer, employee, director, joint venturer, investor, lenderthe “Restricted Employees”), or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hiredirectly or indirectly solicit the employment or services of, engage, recruit, solicit or induce, cause or attempt to inducecause to leave the employment or service of the Company, Buyer or any Affiliate of Buyer, any current Restricted Employees; provided, however, that the Restricted Party may solicit or prospective employeehire any Restricted Employees if (X) Buyer has consented to the solicitation or hiring of such individual in writing, officer, director, contractor or other business associate of the Company to terminate their employment withwhich consent Buyer may withhold in its sole discretion, or otherwise cease their business relationship with, the Company; or
(iiiY) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of such solicitation solely occurs by general solicitation for employment not directed at any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringsuch Restricted Employees.
(b) If For a period of 18 months after the Closing Date, the Restricted Party agrees that it will not, directly or indirectly, acting alone or as a member of a partnership or company, as a holder or owner of any restriction set forth security, as a lender, agent, advisor, consultant or independent contractor: (i) within the Restricted Area, carry on, participate in, or be engaged in (whether for its own account or for the account of any other Person) the Restricted Business; (ii) share in the earnings of, or beneficially own or hold any security issued by, or otherwise own or hold any interest in any entity which is engaged in the Restricted Business within the Restricted Area; or (iii) encourage or induce, directly or indirectly, any customer or supplier of the Company who is a customer or supplier of the Company within the Restricted Area immediately prior to or any time during the six month period ending at the Closing, or is a prospective customer or supplier of the Company within the Restricted Area immediately prior to or any time during the six month period ending at the Closing, to curtail, cancel or materially reduce its business or refrain from doing business with, Buyer or its Affiliates (which after Closing includes the Company) within the Restricted Area. Notwithstanding the foregoing provisions of this Section 6 3(b), the Restricted Party may own, solely as an investment, securities of an entity that is found engaged in the Restricted Business within the Restricted Area if the Restricted Party (A) is not an Affiliate of the issuer of such securities, (B) does not, directly or indirectly, beneficially own more than 5% in the aggregate of such class of securities, and (C) has no active participation in such entity.
(c) From the Closing Date and through December 31, 2019, Buyer and the Restricted Party will, and will use commercially reasonable efforts to cause its Affiliates and Representatives to, (i) maintain the strict confidentiality of any and all Confidential Information and (ii) not disclose such Confidential Information to any Person other than any of its Affiliates or Representatives, except (x) to the extent required by Law (provided that if required by Law, Buyer or the Restricted Party, as applicable, agrees, to the extent legally permissible, to give the other Party prior written notice of such disclosure in sufficient time to permit Buyer or the Restricted Party, as applicable, to seek a protective order should it so determine) or (y) in a Claim brought by Buyer or the Restricted Party, as applicable, in the pursuit of its remedies under this Agreement. Buyer and the Restricted Party shall, whenever such Party discloses Confidential Information other than pursuant to clause (x) and (y) of the preceding sentence, (1) notify all Persons to whom Confidential Information is disclosed of the confidential nature of the materials disclosed and the provisions of this Agreement; and (2) ensure that all Persons to whom the terms of this Agreement or the Confidential Information is disclosed keep such information confidential and do not disclose or divulge such information to any unauthorized Person in each case in accordance with this Agreement.
(d) The Restricted Party hereby agrees that if it violates or threatens to violate any of the provisions of this Section 3 it would be difficult to determine the entire cost, damage or injury which Buyer and its Affiliates would sustain. The Restricted Party acknowledges that if it violates any of the provisions of this Section 3, Buyer may have no adequate remedy at law. In the event of such violation, Buyer shall have the right, in addition to any other rights that may be available to it, to seek to obtain in any court of competent jurisdiction injunctive relief to restrain any violation by the Restricted Party of any provision of this Section 3 or to seek to compel specific performance by the Restricted Party of one or more of its obligations under this Section 3. The seeking or obtaining by Buyer of such injunctive relief shall not foreclose or in any way limit the right of Buyer to obtain a money judgment against the Restricted Party for any damage to Buyer that may result from any breach by the Restricted Party of any provision of this Section 3.
(e) The Restricted Party acknowledges that the covenants contained in this Section 3 are reasonable in geographic and temporal scope, and the Restricted Party acknowledges that the covenants contained in this Section 3 are reasonable in temporal scope and that the scope of each of the activities being restrained is reasonable and does not impose a greater restraint than is necessary to protect the goodwill or other business interest of Buyer and the Company. If any court of competent jurisdiction determines that any of such covenants, provisions or portions of Section 3, or any part thereof, are unenforceable or otherwise invalid, then (i) the validity and enforceability of any remaining covenants, provisions or portions thereof shall not be affected by such determination, (ii) those of such covenants, provisions or portions that are determined to be unenforceable because it extends for too long a period of time the duration or over too great a range of activities or in too broad a geographic area, it scope thereof shall be interpreted reformed if possible by the court to extend only over reduce their duration or scope so as to render the same enforceable against the Restricted Party to the maximum period of timeduration and broadest scope permitted by law, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6and if such reformation is not possible, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered then severance by the Employee to court, and (iii) all remaining covenants, provisions, portions and terms of this Section 3 shall be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial valid and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement enforceable to the contrary hereinfullest extent permitted by law.
Appears in 2 contracts
Samples: Restrictive Covenant Agreement, Restrictive Covenant Agreement (Silver Run Acquisition Corp II)
Restrictive Covenants. (a) During Both during the term of this Agreement Employment and for a period of one (1) year after during the termination or expiration thereofRestricted Period, the Employee Executive will not, without the prior written consent of the Company (such consent not to be unreasonably withheld), whether by himself, through his employees or agents or otherwise and whether on his own behalf or on behalf of any person, directly or indirectly:
(ia) so as an individual proprietorto compete with the Company, partnersolicit business from or canvas any Customer or Prospective Customer in respect of Restricted Products or Restricted Services;
(b) so as to compete with the Company, stockholderaccept orders from, officeract for or have any business dealings with, employeeany Customer or Prospective Customer in respect of Restricted Products or Restricted Services;
(c) within the Restricted Area, director, joint venturer, investor, lender, be employed or engaged or at all interested (except as a Minority Holder) in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock that part of a publicly held company), engage business or person which is involved in the business of researching into, developing, producingmanufacturing, marketing distributing, selling, supplying or selling services otherwise dealing with Restricted Products or Restricted Services, if the business or person is or seeks to be in competition with the Company. For the purposes of the kind or type developed or being developedthis sub-Clause, produced, marketed or sold acts done by the Company while Executive outside the Restricted Area shall nonetheless be deemed to be done within the Restricted Area where their primary purpose is to distribute, sell, supply or otherwise deal with Restricted Products or Restricted Services in the Restricted Area;
(d) solicit or induce or endeavour to solicit or induce any person who was a Restricted Employee was employed by (and with whom the Executive had dealings during the Relevant Period) to cease working for or providing services to the Company, whether or not any such person would thereby commit a breach of contract;
(e) employ or otherwise engage any Restricted Employee in the business of researching into, developing, manufacturing, distributing, selling, supplying or otherwise dealing with Restricted Products or Restricted Services if that business is, or seeks to be, in competition with the Company; or
(iif) hire, engage, recruit, solicit or induce, induce or attempt endeavour to induce, solicit or induce any current or prospective employee, officer, director, contractor or other business associate of Supplier to cease to deal with the Company to terminate their employment with, or otherwise cease their business and shall not interfere in any way with any relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by between a Supplier and the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary herein.
Appears in 2 contracts
Samples: Service Agreement (LivaNova PLC), Service Agreement (LivaNova PLC)
Restrictive Covenants. (a) During Both during the term Employment and during the Restricted Period, you will not, without the prior written consent of this Agreement the Company, whether by yourself, through your employees or agents and for a period whether on your own behalf or on behalf of one (1) year after the termination or expiration thereofany person, the Employee will not directly or indirectly:
(ia) so as an individual proprietorto compete with the Company solicit business from any Customer or Prospective Customer in respect of Restricted Products or Restricted Services;
(b) so as to compete with the Company, partneraccept any orders from, stockholderact or have any business dealings with, officerany Customer or Prospective Customer in respect of Restricted Products or Restricted Services;
(c) within the Restricted Area, employee, director, joint venturer, investor, lender, be employed or engaged in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock or provide Confidential Information to that part of a publicly held company)business which is involved in Restricted Products or Restricted Services, if the business is or seeks to be in competition with the Company. For the purposes of this sub-clause, acts done by you outside the Restricted Area shall nonetheless be deemed to be done within the Restricted Area where their primary purpose is to distribute, sell, supply or otherwise deal with Restricted Products or Restricted Services in the Restricted Area to a material extent;
(d) solicit or induce any person who is a Restricted Employee (and with whom you had dealings during the Relevant Period) to cease working for or providing services to the Company, whether or not any such person would thereby commit a breach of contract;
(e) employ or otherwise engage any Restricted Employee in the business of developingRestricted Products or Restricted Services if that business is, producingor seeks to be, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by in competition with the Company; or
(iif) hire, engage, recruit, solicit or induce, or attempt induce any Supplier to induce, any current or prospective employee, officer, director, contractor or other business associate of cease to deal with the Company to terminate their employment with, or otherwise cease their business and shall not interfere in any way with any relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by between a Supplier and the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary herein.
Appears in 2 contracts
Samples: Service Agreement (ReNew Energy Global PLC), Service Agreement (ReNew Energy Global PLC)
Restrictive Covenants. (a) During the term of this Agreement and for For a period of one five (15) year years from and after the termination or expiration thereofClosing Date (the “Restricted Period”), the Employee will Public Company shall not, and shall cause its Affiliates not to, directly or indirectly:
(i) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lenderindirectly engage in any business substantially similar to or that otherwise competes with the Company or its Subsidiaries anywhere in the world, or own the Equity Interests of, manage, operate or control, any Person that engages in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing substantially similar to or selling services of the kind or type developed or being developed, produced, marketed or sold by that otherwise competes with the Company while or its Subsidiaries (the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringRestricted Business”).
(b) If any restriction set forth in Notwithstanding the foregoing, this Section 6 is found 7.17 shall not operate to prevent or restrict the direct or indirect acquisition by the Public Company or any court of competent jurisdiction its Affiliates (through acquisition, merger or other strategic transaction) of an interest in any Person that engages in the Restricted Business and either (i) such Person does not have consolidated total annual gross revenues derived from the Restricted Business (at the time of the completion of such investment or acquisition) in excess of 10% of the consolidated total annual gross revenue of the Company and its Subsidiaries for the fiscal year ending prior to be unenforceable because it extends for too long a period of time the Closing Date or over too great a range of activities or (ii) the Public Company’s and Affiliates’ voting ownership interest in too broad a geographic area, it shall be interpreted to extend only over such Person does not exceed 25% in the maximum period of time, range of activities or geographic area as to which it may be enforceableaggregate.
(c) The restrictions contained in Sections 6During the Restricted Period, 7 and 8 are necessary for the protection Public Company agrees that none of the business and goodwill Public Company or any of its Affiliates will, directly or indirectly, (i) hire (whether as an employee, consultant or otherwise) or (ii) solicit or induce to leave the employment of the Company or its Subsidiaries or violate the terms of their contracts, or any employment arrangements (and, during the period prior to the Closing, the Public Company shall and are considered by the shall cause its Affiliates not to solicit or induce any Continuing Employee to be reasonable for such purpose. The Employee agrees that any breach leave the employment of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and thereforeor its Subsidiaries), any (x) director, officer or employee of the company or its Subsidiaries employed by Buyer or any of its Affiliates with the title of Vice President or higher or (y) any other Continuing Employee or employee, representative or agent of the Company or its Subsidiaries employed by Buyer or any of its Affiliates (provided that, the foregoing shall not apply to the solicitation or hiring of (I) any such Persons described in the event preceding clause (y) whose employment has been terminated by Buyer or any of its Affiliates and (II) any such breach, Persons described in addition the preceding clause (y) who respond to such other remedies which may be availablegeneral solicitations of employment not specifically directed toward employees of Buyer or any of its Affiliates).
(d) During the Restricted Period, the Public Company agrees, and agrees to cause its Affiliates and its and their respective officers, directors, managers, employees, and other Representatives, to keep confidential and not disclose any Confidential Information regarding the Company and its Subsidiaries; provided, however, that such Persons shall have not be required to maintain as confidential any Confidential Information (i) that becomes generally available to the right public other than as a result of disclosure by such Person or any of their Affiliates or Representatives in breach hereof, (ii) that is required to seek specific performance be disclosed pursuant to the terms of a valid subpoena or any order, judgment, injunction, decree, stipulation, audit, requirement or determination issued, promulgated or entered by or with any Governmental Authority or other requirement of Law; it being agreed that the disclosing party will use its reasonable best efforts to provide reasonable advance notice (to the extent practicable) to Buyer and injunctive relief use reasonable best efforts to assist Buyer in obtaining confidential treatment of such information to the extent possible, or (iii) in any court dispute under this letter agreement or any Transaction Document or to assert any right of competent jurisdictionsuch Person hereunder or thereunder. “Confidential Information” means all documents, regardless books, records, processes, product developments, customer lists, trade secrets and other information of a confidential or proprietary nature and including written information and information transferred or obtained orally, visually, electronically or by any statement other means, to the contrary hereinextent relating to the business, products or services of the Company or its Subsidiaries.
Appears in 1 contract
Samples: Stock Purchase Agreement (Envision Healthcare Corp)
Restrictive Covenants. Each of Shareholders and Xxxxxx X. Xxxxxxxxx (a"Xxxxxxxxx") During the term of this Agreement and will, for a period of one three (13) year after years from the termination Closing Date, refrain from, either alone or expiration thereofin conjunction with any other Person, the Employee will not or directly or indirectlyindirectly through its present or future Affiliates:
(ia) as employing, engaging or seeking to employ or engage any Person who within the prior twelve (12) months had been an individual proprietorofficer or employee of Xxxxx, partnerunless such officer or employee (A) resigns voluntarily (without any solicitation from Shareholder or any of its Affiliates) or (B) is terminated by Xxxxx after the Closing Date;
(b) causing or attempting to cause (A) any client, stockholdercustomer, vendor or supplier of Xxxxx to terminate or materially reduce its business with Xxxxx or (B) any officer, employeeemployee or consultant of Xxxxx to resign or sever a relationship with Xxxxx;
(c) disclosing (unless compelled by judicial or administrative process or otherwise required by law) or using any confidential or secret information relating to Xxxxx or any of its clients, directorcustomers, joint venturer, investor, lender, vendors or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Companysuppliers; or
(iid) hireexcept as contemplated by the Employment Agreement, engage, recruit, solicit participating or induce, engaging in (other than through the ownership of five percent (5%) or attempt to induce, less of any current or prospective employee, officer, director, contractor or other business associate class of securities registered under the Company to terminate their employment withExchange Act), or otherwise cease their business relationship withlending material assistance (financial or otherwise) to any Person participating or engaged in, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clientslines of business in which Xxxxx is participating or engaged on the Closing Date in any jurisdiction in which Xxxxx participates or engages in such line of business on the Closing Date; provided, customers or accountshowever, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it that Xxxxxxx and Xxxxxxxxx shall be interpreted permitted to extend only over the maximum period of time, range of activities participate or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief engage in any court of competent jurisdiction, regardless of business (including any statement to the contrary hereinreal estate transaction) which does not violate subsection (d) hereof.
Appears in 1 contract
Samples: Merger Agreement (Bancorp, Inc.)
Restrictive Covenants. (a) During You hereby agree that, during (i) the term six-month period following a termination of your employment with the Company that entitles you to receive severance benefits under this Agreement or a written agreement with or policy of the Company or (ii) the twelve-month period following a termination of your employment with the Company that does not entitle you to receive such severance benefits (the period referred to in either clause (i) or (ii), the "Restricted Period"), you shall not undertake any employment or activity (including, but not limited to, consulting services) with a Competitor (as defined below) in any geographic area in which the Company or any of its affiliates operates (the "Market Area"), where the loyal and complete fulfillment of the duties of the competitive employment or activity would call upon you to reveal, to make judgments on or otherwise use or disclose any confidential business information or trade secrets of the business of the Company or any of its affiliates to which you had access during your employment with the Company. If you take a position as a vice president (or higher position) or as a director of a Competitor it will be presumed for purposes of this Agreement that the loyal and for a period complete fulfillment of one (1) year after the termination your duties would require you to use such information and you would therefore be deemed to be in breach of this provision. For purposes of this Section, "Competitor" shall refer to any health maintenance organization or expiration thereof, the Employee will not directly insurance company that provides managed health care or indirectly:
(i) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling related services of the kind or type developed or being developed, produced, marketed or sold similar to those provided by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringits affiliates.
(b) If In addition, you agree that, during the applicable Restricted Period following termination of your employment with the Company, you shall not, directly or indirectly, (A) solicit, interfere with, hire, offer to hire or induce any restriction set forth in this Section 6 person, who is found by or was an employee of the Company or any of its affiliates at the time of such solicitation, interference, hiring, offering to hire or inducement, to discontinue his/her relationship with the Company or any of its affiliates or to accept employment by, or enter into a business relationship with, you or any other entity or person or (B) solicit, interfere with or otherwise contact any customer or client of the Company or any of its affiliates.
(c) It is hereby further agreed that if any court of competent jurisdiction shall determine that the restrictions imposed in this Section are unreasonable (including, but not limited to, the definition of Market Area or Competitor or the time period during which this provision is applicable), the parties hereto hereby agree to any restrictions that such court would find to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over reasonable under the maximum period of time, range of activities or geographic area as to which it may be enforceablecircumstances.
(cd) The restrictions You also acknowledge that the services to be rendered by you to the Company are of a special and unique character, which gives this Agreement a peculiar value to the Company or any of its affiliates, the loss of which may not be reasonably or adequately compensated for by damages in an action at law, and that a material breach or threatened breach by you of any of the provisions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 this Section will cause the Company substantial and irrevocable damage and therefore, in or any of its affiliates irreparable injury. You therefore agree that the event of any such breachCompany may be entitled, in addition to such the remedies set forth above in this Section and any other remedies which may be availableright or remedy, to a temporary, preliminary and permanent injunction, without the Company shall have necessity of proving the right to seek specific performance and injunctive relief in any court inadequacy of competent jurisdiction, regardless monetary damages or the posting of any statement to the contrary hereinbond or security, enjoining or restraining you from any such violation or threatened violations.
Appears in 1 contract
Restrictive Covenants. 2.1. You agree that, in exchange for the Company's willingness to furnish you with the Confidential Information, you shall not, during the pendency of your engagement as a consultant to the Company, or within the six month period following termination of the referenced Consulting and Settlement Agreement, either directly or indirectly, unless any of the following actions shall have been specifically invited or authorized in writing by the Company, (a) During effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause to participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, (i) any tender or exchange offer, merger or other business combination involving the term Company or any of this Agreement and for its subsidiaries; (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries; or (iii) any "solicitation of proxies" (as such terms are used in the Commission's proxy rules), consents or other authorizations to vote any voting securities of the Company; (b) form, join or in any way participate in a period "group" (as defined under the Securities Exchange Act of one 1934, as amended) or otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company; (1c) year after take any action which might force the termination Company to make a public announcement regarding any of the types of matters set forth in (a) above; or expiration thereof(d) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Notwithstanding the foregoing, the Employee will not (a) there shall be no restriction on your purchase or sale, directly or indirectly:
, of any securities of, or voting rights with respect to, the Company or any of its subsidiaries, whether by way of private or open market transactions; and (b) Consultant shall, at all times, be permitted to solicit or obtain proxies from the following persons: (i) Xxxxx Xxxxx; (ii) Xxxx Xxxxxxx; (iii) Xxx Xxxxxxx; (iv) C.A.S.E., a nonprofit organization; and (v) up to five (5) additional persons, in Consultant's sole discretion.
2.2. You further agree that, in exchange for the Company's willingness to furnish you with the Confidential Information, you shall not, during the pendency of your engagement as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lendera consultant to the Company, or in within the six month period following termination of the referenced Consulting and Settlement Agreement, either directly or indirectly, own, manage, operate, control, be an officer or director or be employed by any other capacity whatsoever Competitor (defined below); you will not induce, directly or indirectly, solicit, or cause to be solicited, any employee of the Company to leave his/her employment with the Company; and you will not, directly or indirectly, solicit any customers or clients of the Company that have done business with the Company at any time or from time to time during the period of the Consultant's business relationship hereunder for any business purpose other than for the benefit of the Company. For purposes of this Agreement, a "COMPETITOR" is defined as any person, corporation or other entity which (i) is a telecommunications company of similar size and mission as the holder Company anywhere within the United States or (ii) with locations within a fifty (50) mile radius of Oklahoma City, Oklahoma, that, at any time, sells or attempts to sell any products or services which are the same as or similar to the products and services sold or promoted by the Company at any time and from time to time during the two (2) years immediately prior to the full execution of this Agreement. Beneficial or record ownership of not more than one five percent (15%) of the total outstanding capital stock of any publicly traded corporation for which the Consultant performs no active management or consulting services shall not be a publicly held company), engage in the business violation of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Companythis Section 2.2.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise2.3. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth The restrictive covenants in this Section 6 is found by 2.1 and Section 2.2 are not intended to and shall not prohibit Consultant from performing any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered obligations imposed on him by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial Consulting and irrevocable damage Settlement Agreement and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary hereinhis consulting duties as set forth therein.
Appears in 1 contract
Samples: Consulting and Settlement Agreement (Amerivision Communications Inc)
Restrictive Covenants. Each Founder confirms that, neither during the Employment nor during the Restricted Period, without the prior written consent of the Company and RAB, whether by himself, through his employees or agents or otherwise and whether on his own behalf or on behalf of any person, directly or indirectly, he will not:
(a) During so as to compete with the term Company and/or any other member of this Agreement and for a period the Group solicit business from or canvas any Customer or Prospective Customer in respect of one (1) year after the termination Restricted Goods or expiration thereof, the Employee will not directly or indirectly:Restricted Services;
(ib) so as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender, or in to compete with the Company and/or any other capacity whatsoever (other than as the holder of not more than one percent (1%) member of the total outstanding stock Group accept orders from, act for or have any business dealings with, any Customer or Prospective Customer in respect of Restricted Goods or Restricted Services;
(c) so as to compete with the Company and/or any other member of the Group within the Restricted Area, be employed or engaged or at all interested in (except as a publicly held company), engage minority holder) a business or person which is involved in the business of researching into, developing, producingmanufacturing, marketing distributing, selling, supplying or selling services otherwise dealing with Restricted Goods or Restricted Services, if the business is or seeks to be in competition with the Company and/or any other member of the kind or type developed or being developedGroup. For the purposes of this Clause 8.1.2(c), produced, marketed or sold acts done by the Founder outside the Restricted Area shall nonetheless be deemed to be done within the Restricted Area where their primary purpose is to engage in such acts within the Restricted Area;
(d) solicit or induce or endeavour to solicit or induce any person who, on the Termination Date, was a Critical Employee (and with whom the Founder had dealings during the Relevant Period) to cease working for or providing services to the Company while and/or any other member of the Group, whether or not any such person would thereby commit a breach of contract;
(e) employ or otherwise engage any Critical Employee was employed by in the Companybusiness of researching into, developing, manufacturing, distributing, selling, supplying or otherwise dealing with Restricted Goods or Restricted Services if that business is, or seeks to be, in competition with the Company and/or any other member of the Group; or
(iif) hire, engage, recruit, solicit or induce, induce or attempt endeavour to induce, solicit or induce any current or prospective employee, officer, director, contractor or Supplier to cease to deal with the Company and/or any other business associate member of the Group and shall not interfere in any way with any relationship between a Supplier and the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of and/or any other member of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the CompanyGroup.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary herein.
Appears in 1 contract
Samples: Loan Note Investment Agreement (American Southwest Holdings Inc)
Restrictive Covenants. (a) During the term period beginning on the Closing Date and ending on the fifth anniversary of the Closing Date (the “Restricted Period”), each Seller covenants and agrees not to, and shall cause his or her Affiliates not to, directly or indirectly and anywhere in the Restricted Territory, conduct, manage, operate, engage in, or have an ownership interest in any business or enterprise engaged in (i) the Business, or (ii) any activities that are otherwise similar to, or competitive with, the Business. Notwithstanding the provisions of this Agreement and for a period of one (1) year after the termination or expiration thereofSection 5.2(a), the Employee will beneficial ownership of less than five percent of the shares of stock or other equity interests of any corporation or other entity having a class of equity securities actively traded on a national securities exchange or over-the-counter market and not formed for the purpose of circumventing this Agreement shall not be deemed to violate the provisions of this Section 5.2(a).
(b) During the Restricted Period, each Seller covenants and agrees not to, and shall cause his or her Affiliates not to, directly or indirectly:
(i) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruitcall-on, solicit or induce, or attempt to solicit or induce, any current Person which is or was a past, present or prospective employee, officer, director, contractor customer or other business associate relation of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any as of the clients, customers Closing Date for the provision of products or accounts, or prospective clients, customers or accounts, of services related to the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities Business or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceableany other manner that would otherwise interfere with business relationships between Buyer and such customers and other business relations.
(c) The restrictions contained in Sections 6During the Restricted Period, 7 each Seller covenants and 8 are necessary for agrees not to, and shall cause his or her Affiliates not to, directly or indirectly, call-on, solicit or induce, or attempt to solicit or induce, any Person who was employed or engaged as an independent contractor by the protection of Company on or at any time before the business and goodwill Closing Date, to leave the employ or engagement of the Company or its Affiliates (including Buyer) for any reason whatsoever.
(d) Sellers acknowledge and agree that the provisions of this Section 5.2 are considered by reasonable and necessary to protect the Employee to be reasonable legitimate business interests of Buyer and its acquisition of the Company Units. Neither Seller shall contest that Buyer’s remedies at law for such purpose. The Employee agrees that any breach or threat of Sections 6breach by any Seller or any of their respective Affiliates of the provisions of this Section 5.2 may be inadequate, 7 and that Buyer shall be entitled to an injunction or 8 will cause injunctions to prevent breaches of the Company substantial provisions of this Section 5.2 and irrevocable damage to enforce specifically such terms and therefore, in the event of any such breachprovisions, in addition to such any other remedies remedy to which Buyer may be availableentitled at law or equity. The restrictive covenants contained in this Section 5.2 are covenants independent of any other provision of this Agreement or any other agreement between the Parties hereunder and the existence of any claim which any Seller may allege against Buyer under any other provision of the Agreement or any other agreement will not prevent the enforcement of these covenants.
(e) If any of the provisions contained in this Section 5.2 shall for any reason be held to be excessively broad as to duration, scope, activity or subject, then such provision shall be construed by limiting and reducing it, so as to be valid and enforceable to the Company shall have extent compatible with the right to seek specific performance and injunctive relief in any applicable Law or the determination by a court of competent jurisdiction, regardless of any statement to the contrary herein.
Appears in 1 contract
Restrictive Covenants. (a) During the term period commencing on the Closing Date and continuing until the fourth (4th) anniversary of this Agreement the Closing Date, neither Seller nor Seller Parent shall, and for a period shall cause their controlled Affiliates not to, do any of one (1) year after the termination or expiration thereoffollowing, the Employee will not whether directly or indirectly, on behalf of or with any other Person, and whether as a principal, agent, shareholder, participant, partner, manager, member, equity owner, lender or otherwise: own, control, manage, or participate in the ownership, control or management of, or render services, assistance or advice to, or have a financial interest in, or lend its name to, any business engaged in, or that is undertaking to become engaged in any business that competes with, or is otherwise engaged in, the Business, including as conducted by the Acquired Companies on or prior to the Closing Date (collectively, the “Competitive Business”), in each case, within the United States and its territories; provided, that the foregoing shall not prohibit the ownership, as a passive investment, of not more than 2% of the capital stock of any Person that is engaged in the Competitive Business so long as such ownership does not involve any active participation in the business of such Person.
(b) During the period commencing on the Closing Date and continuing until the fourth (4th) anniversary of the Closing Date, neither Seller nor Seller Parent shall, and shall cause their controlled Affiliates not to, do any of the following, whether directly or indirectly, on behalf of or with any other Person, and whether as a principal, agent, shareholder, participant, partner, manager, member, equity owner, lender or otherwise:
(i) as an individual proprietorsolicit, partnerinduce, stockholder, officer, employee, director, joint venturer, investor, lenderattempt to induce, or assist in the solicitation of, any other capacity whatsoever (other than as the holder of not more than one percent (1%) customer or supplier of the total outstanding stock of a publicly held company), engage in Business to cease doing or materially limit its business with the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; orAcquired Companies;
(ii) hireinterfere with the relationship between the Acquired Companies and any customer or supplier of the Acquired Companies; provided, engagehowever, recruit, solicit Buyer acknowledges that Seller Parent and its Affiliates may now or inducein the future engage in business related, or attempt ancillary, to induce, any current or prospective employee, officer, director, contractor or other business associate the businesses of the Company Acquired Companies and Buyer which may include business relationships with customers or suppliers of the Acquired Companies and that such relationships shall not be deemed to terminate their employment with, be a violation of this Section 4.12 to the extent the relationships do not otherwise violate Section 4.12(a) or otherwise cease their business relationship with, the Company(b); or
(iii) solicit, divert or take awayinduce, attempt to induce, or attempt to divert assist in the solicitation of, any employee, independent contractor (including agents) or to take away, other Person employed or engaged by the business Buyer or patronage of any of its Affiliates (including the clientsAcquired Companies) in any capacity (as an employee, customers independent contractor or accountsotherwise, whether directly or indirectly) for the purpose of inducing such Person to terminate such employment or other engagement, whether or not such employment or engagement with Buyer (or its Affiliates) is pursuant to a contract or at-will, or prospective clientshire or engage any such employee, customers independent contractor (including agents) or accountsother Person, in each case, whether or not for a Competitive Business; provided, however, nothing in this Section 4.12(b)(ii) shall prohibit the Seller or its Affiliates from (A) soliciting any such Person as a result of general solicitation for employment to the Company public or using an employee recruiting or search firm to conduct a search, in each case, which were contactedis not expressly directed at such Person or (B) soliciting any such Person who has ceased (without inducement, solicited encouragement or served other involvement by the Employee while Seller or its Affiliates) to be employed by any Acquired Company or the Company.
(iv) For the purposes Buyer for a period of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation after their separation from an Acquired Company or hiringBuyer.
(c) During the period commencing on the Closing Date and continuing until the fourth (4th) anniversary of the Closing Date, neither Party shall, and shall cause their Affiliates not to, make any disparaging statements regarding the other Party and its Affiliates (including, in the case of Buyer after the Closing, the Acquired Companies) and their respective businesses; provided, that nothing in this Section 4.12(c) prohibits the Parties (or their Affiliates) from (a) making bona fide statements as required by applicable Law, including all applicable United States federal and state securities laws and regulations, or (b) If exercising or enforcing any restriction of their rights under this Agreement or any of the Transaction Documents to which they are a party. The Parties and Seller Parent acknowledge that the covenants set forth in this Section 6 is found 4.12 are an essential element of this Agreement. The Parties and Seller Parent acknowledge that this Section 4.12 shall survive the Closing and constitutes an independent covenant and shall not be affected by performance or nonperformance of any court other provision of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over this Agreement. If the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection either of the business and goodwill Parties or Seller Parent, or any of their Affiliates, breaches, or threatens to commit a breach of, any of the Company and are considered by covenants set forth in this Section 4.12, the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breachnon-breaching Party shall have, in addition to, and not in lieu of, any other rights and remedies available to such other remedies which may be availableit under law or in equity, the Company shall have the right to seek specific performance and injunctive relief in have such covenants specifically enforced by any court of competent jurisdiction, regardless it being agreed that any breach or threatened breach of such covenants would cause irreparable injury to the non-breaching Party and that money damages would not provide an adequate remedy. The Parties and Seller Parent covenant and agree not to oppose any demand for specific performance or injunctive or other equitable relief in case of any statement to the contrary hereinsuch breach or attempted breach.
Appears in 1 contract
Samples: Securities Purchase Agreement (Finance of America Companies Inc.)
Restrictive Covenants. 6.1 The Vendor undertakes (afor itself and as agent for each member of the Vendor Group) During with the term Purchaser that, except with the consent in writing of the Purchaser but subject to the proviso that none of the covenants contained in this Agreement clause 6.1 shall prevent or restrict the Vendor or any member of the Vendor's Group at the date hereof from carrying on business in the manner in which that company has hitherto carried on business the Vendor will not and will procure that no member of the Vendor Group shall, for a period of one (1) year after two years from the termination Completion Date:
6.1.1 either on its` own account or expiration thereoffor or on behalf of or through or in conjunction, the Employee will not association or by arrangement with any person whether for its own benefit or that of others, directly or indirectly:, carry on or be engaged, concerned or interested in or in the carrying on of the Restricted Business in the United Kingdom save:-
(ia) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender, or in any other capacity whatsoever (other than as the holder for investment purposes only of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage 3% of any class of the clients, customers shares or accounts, stock in a company where such shares or prospective clients, customers stock are quoted or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition dealt in on a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringrecognised investment exchange.
(b) If subject always to the provisions of clause 6.5 below where the Vendor or Vendor Group has acquired a company or business which has as an incidental part of its operations the Restricted Business, and for the purposes of this clause "incidental part" shall mean a company or business whose turnover in respect of the Restricted Business is not greater than 10% (ten per cent) of that company's or business' turnover as a whole;
6.1.2 either on its own account or for or on behalf of or through or in conjunction, association or by arrangement with any restriction set forth person whether for its own benefit or that of others, directly or indirectly in this Section 6 is found relation to the Restricted Business solicit, canvass or approach any person who, at any time during the 12 months prior to the Completion Date it has actual knowledge was provided with goods or services by any court Group Company for the purpose of competent jurisdiction offering to be unenforceable because it extends that person goods or services similar to those with which he was so provided or otherwise to entice away the custom or business of that person from any Group Company;
6.1.3 either on its own account or for too long a period or on behalf of time or over too great a range of activities through or in too broad a geographic areaconjunction, it shall be interpreted association or by arrangement with any person, whether for its own benefit or that of others, directly or indirectly supply to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceableany person specified in clause 6.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for 1.2 goods or services similar to those with which such person was so provided by either Group Company at any time during the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement 12 months prior to the contrary herein.Completion Date;
Appears in 1 contract
Samples: Share Sale and Purchase Agreement (4front Technologies Inc)
Restrictive Covenants. Participant acknowledges and agrees that (ai) During as a result of Participant’s employment or other relationship with the term Company or its Affiliates, he or she has possessed and learned, and will continue to possess and learn, valuable trade secrets and other confidential or proprietary information relating to the Company and its Affiliates, (ii) Participant’s services to the Company and its Affiliates are unique in nature, (iii) the Company’s and its Affiliates’ business is national in scope, and (iv) the Company and its Affiliates would be irreparably damaged if Participant were to provide services to any other Person or take other actions in violation of the restrictions contained in this Agreement Agreement. Accordingly, as an inducement for the Company to enter into this Agreement, Participant agrees that during his or her employment and for a period of one (1) year after thereafter (such period being referred to herein as the termination or expiration thereof“Restricted Period”), the Employee will not Participant shall not, directly or indirectly:, either for himself or herself or for any other Person (whether as a shareholder, member, equityholder, officer, director, employee, partner, member, manager, trustee, agent, representative or otherwise):
(a) engage in any Competitive Activity (as defined below) within the Restricted Territory (as defined below);
(b) except on behalf of the Company or its Affiliates, (i) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lendersolicit any Business from, or in conduct any Business with, any reseller, customer, client, merchant, vendor, supplier or independent sales representatives or organizations (or other capacity whatsoever (other than as Persons having a similar relationship with the holder of not more than one percent (1%Company or its Affiliates) of the total outstanding stock Company or any of its Affiliates; (ii) solicit any Business from, or conduct any Business with, any Person that was known by Participant to be solicited or identified as a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold prospect by the Company while or any of its Affiliates; (iii) interfere or attempt to interfere with any transaction, agreement, prospective agreement, business opportunity, or business relationship of the Employee was employed by Company or any of its Affiliates related to the CompanyBusiness; or (iv) otherwise engage or participate in any effort or act to induce any Person to discontinue any business relationship, affiliation or association with the Company or its Affiliates related to the Business; or
(iic) hire, engage, recruit(i) cause, solicit or induce, or attempt to cause, solicit or induce, any current or prospective employee, officeragent, directorassociate, contractor sales representative, consultant or other business associate independent contractor of the Company to terminate their employment withor its Affiliates, or otherwise cease their any Person employed by or affiliated or associated with the Company or its Affiliates at any time within the twelve (12) months prior to the date of such solicitation, inducement or attempt, to consider or accept employment, association or affiliation (whether as an agent, associate, sales representative, consultant, independent contractor or otherwise) with Participant or any such Person in which Participant is directly or indirectly involved; (ii) interfere in any other manner with the business relationship, association or relationship withbetween or among the Company or its Affiliates, and any employee, agent, associate, consultant, sales representative or other independent contractor of the CompanyCompany or its Affiliates; or
or (iii) solicitmake any offer to hire or hire any Person who, divert during the twelve (12) month period prior to the termination of Participant’s employment, affiliation or take awayassociation with the Company or its Affiliates, was employed by or attempt to divert associated or to take awayaffiliated with the Company or its Affiliates; provided, however, that nothing herein shall prohibit Participant from owning not more than 1% of the business outstanding stock or patronage other equity interest of any publicly traded entity engaged in the Business, so long as Participant is merely a passive investor and has no role in the operation or management of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Companysuch entity.
(ivd) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary herein.Agreement:
Appears in 1 contract
Samples: Restricted Stock Unit Award (Shift4 Payments, Inc.)
Restrictive Covenants. 8.1 Subject to Clause 8.3 and 8.4 below, in order to protect the Group’s legitimate business interests, each of the Existing Investors and the Founder Members undertakes to the Company and to each of the New Investors that he will not, whether directly or indirectly, and whether alone or in conjunction with any other Person and whether as principal, shareholder, director, employee, agent, consultant or otherwise and that he will procure that each of his Associates, holding company or subsidiaries will not (other than on behalf of a Group Member):
(a) During at any time during the term Restricted Period hold any Material Interest in any business which competes, to any material extent, with any of this Agreement and the Businesses;
(b) at any time during the Restricted Period, seek in any capacity whatsoever any business, orders or custom for any Restricted Products or Restricted Services from any Customer;
(c) at any time during the Restricted Period, accept in any capacity whatsoever orders for any Restricted Products or Restricted Services from any Customer;
(d) at any time during the Restricted Period seek or accept the supply by any Supplier of Restricted Supplies;
(e) at any time before or after the Termination Date, induce or seek to induce by any means involving the disclosure or use of Confidential Business Information any Customer or Supplier to cease dealing with a Group Member or to restrict or vary the terms upon which it deals with the relevant Group Member;
(f) at any time during the Restricted Period be employed or engaged by any Person who at any time during the period of one nine months prior to the Termination Date shall have been a Customer for the purpose of carrying out the same kind of work as he shall have performed for that Customer during the period of nine months prior to the Termination Date;
(1g) year after at any time during the termination Restricted Period endeavour to entice away from the relevant Group Member or expiration thereof, knowingly employ or engage the services of or procure or assist any third party so to employ or engage the services of any Person who shall have been an Employee will not directly with whom he shall have dealt at any time during the period of nine months prior to the Termination Date;
(h) at any time during the Restricted Period endeavour to entice away from a Group Member or indirectlyknowingly employ or engage the services of or procure or assist any third party so to employ or engage the services of any Person who shall have been providing consultancy services to the relevant Group Member at any time in the period of nine months immediately prior to the Termination Date and who:
(i) by reason of his engagement as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender, a consultant by such Group Member is likely to be able to assist a business in or intending to be in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Companycompetition with such Group Member so to compete; or
(ii) hire, engage, recruit, solicit or induce, or attempt by reason of his engagement as a consultant by such Group Member is likely to induce, be in possession of any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the CompanyConfidential Business Information; or
(iii) solicitat any time after the Termination Date represents himself or permits himself to be held out by any Person, divert firm or take away, company as being in any way connected with or attempt interested in the Company other than as a Shareholder.
8.2 In the interest of clarity and to divert or to take awayavoid ambiguity, the business or patronage of New Investors shall not be bound in any way by the undertakings in Clause 8.1
8.3 Each undertaking contained in Clause 8.1:
(a) shall be construed as a separate undertaking by each of the clients, customers Existing Investors and if any such undertaking is held to be against the public interest or accounts, unlawful or prospective clients, customers or accounts, in any way an unreasonable restraint of trade the remaining undertakings shall continue in full force and effect and shall bind each of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.Existing Investors; and
(b) If any restriction set forth is considered by the Existing Investors to be reasonable.
8.4 It is agreed between the Parties that, in this Section 6 is found its capacity as an Existing Investor, The University of Oxford shall only be:
(a) bound by Clause 8.1(a) of Clause 8.1 and not by any court other sub-clause of competent jurisdiction Section 8.1 thereof; and
(b) deemed to be unenforceable because it extends for too long a period in breach of time or over too great a range of activities or in too broad a geographic area, Clause 8.1
(a) if it shall have a Material Interest in a company whose business involves use of T cells transduced with biotechnologically engineered T cell receptor genes.
8.5 Nothing in the undertakings set out in Clause 8.1 shall be interpreted deemed to extend only over prohibit:
(a) any action in respect of any business or part of any business in which (otherwise than as a result of any breach of any of those undertakings by the maximum period Existing Investors) the Company has ceased to be involved prior to any event giving rise to a claim;
(b) a Shareholder from holding, for investment purposes only, securities dealt in on a Recognised Investment Exchange not exceeding three percent (3%) in nominal value of time, range the securities of activities or geographic area as to which it may be enforceable.that class;
(c) The restrictions contained a Shareholder from having a Material Interest in Sections 6Immunocore Limited, 7 and 8 are necessary for the protection or any subsidiary of the business and goodwill of Immunocore Limited; or
(d) any action which has been approved by the Company and are considered by in writing with the Employee to be reasonable for such purpose. The Employee agrees that any breach prior approval of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary hereina Preferred Majority.
Appears in 1 contract
Samples: Shareholders’ Agreement (Adaptimmune Therapeutics PLC)
Restrictive Covenants. (a) During As a material inducement for Buyer to enter into this Agreement, and in consideration of the term consideration received by Seller hereunder, Seller covenants and agrees that, for the period commencing on the Closing Date and ending on the fifth anniversary of this Agreement and for a period of one (1) year after the termination or expiration thereofClosing Date, the Employee it will not (and it will cause its Affiliates not to), directly or indirectlyindirectly (including, without limitation, through its Affiliates), on behalf of itself or any other Person, in any capacity:
(i) as an individual proprietorsolicit, partnerinduce, stockholderrecruit or encourage (or attempt to solicit, officerinduce, employeerecruit or encourage) any customer, directorsupplier, joint ventureremployee (full-time or part-time), investor, lenderconsultant, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) business relation of the total outstanding stock of Company or the Business (or any Person that was a publicly held company)customer, engage in the supplier, service provider or other business of developing, producing, marketing or selling services relation of the kind Company or type developed the Business within the one-year period prior to such solicitation, inducement, recruitment or being developedencouragement) for the purpose of interfering with, produceddisrupting, marketed impeding, adversely modifying, diverting or sold by terminating such Person’s relationship with the Company while or the Employee was employed by the CompanyBusiness; provided, however, nothing contained above shall prohibit general advertising or solicitation not specifically directed at such Persons; or
(ii) contact, approach or solicit any Person for the purpose of offering employment to or hiring (whether as an employee, consultant, agent, independent contractor or otherwise), or actually hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while Person then employed by the Company.
(iv) For the purposes Company or any of these restrictions, the word “prospective” shall apply to any individual its Affiliates or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within or any of its Affiliates at any time during the three one-year period immediately prior to such contact, approach or solicitation, without the prior written consent of the Company; provided, however, nothing contained above shall prohibit general advertising or solicitation not specifically directed at employees of the Company or its Affiliates provided that no such Person is hired in violation of the restrictions set forth above. For clarity, the independent distributors and resellers of Seller or its Affiliates will not be deemed to be acting on behalf of Seller or its Affiliates for purposes of this Section 6.05 if (3i) months preceding any potential solicitation they are not Affiliates of Seller or hiringits Affiliates, and (ii) such actions are of the type customarily taken by them in the ordinary course of business and not at the specific direction of Seller or its Affiliates.
(b) If Seller acknowledges and agrees that (i) the restrictions contained in Section 6.05(a) are fair and reasonable, do not place any restriction undue hardship on Seller, and are reasonably required for the protection of the goodwill, the business, and the interests of the Company and its Affiliates, officers, directors, stockholders, and other employees; (ii) the potential harm to the Company and its Affiliates of its non-enforcement of such restrictions outweighs any harm to Seller of its enforcement by injunction or otherwise; (iv) Seller has carefully read this Agreement and has given careful consideration to the restraints imposed upon Seller herein, and is in full accord as to their necessity, and (v) Seller will not challenge the reasonableness or enforceability of any of the covenants set forth in this Section 6 is found 6.05 (but, for clarity, may challenge whether such covenants have been breached), and (without limiting its indemnification obligations hereunder or the rights and remedies of Buyer) Seller will reimburse Buyer and its Affiliates for all costs (including reasonable attorneys’ fees) incurred by such party if Seller challenges the enforceability of any court of competent jurisdiction to be unenforceable because it extends for too long a period the provisions of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceablethis Section 6.05.
(c) The restrictions contained in Sections 6, 7 It is the desire and 8 are necessary for the protection intent of the business parties that the provisions of Section 6.05 shall be enforced to the fullest extent permissible under the Laws and goodwill public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of the Company and are considered by the Employee Section 6.05 shall be adjudicated to be reasonable for invalid, illegal, or unenforceable in a particular jurisdiction, (i) such purpose. The Employee invalidity, illegality or unenforceability shall not affect the operation of such provision in any other jurisdiction, and shall not affect any other provisions of this Section 6.05, and (ii) such provision will not be construed to be null, void and of no effect in such jurisdiction, but instead a court of competent jurisdiction will construe, interpret, reform or judicially modify such provision to be valid, legal and enforceable to the maximum extent permitted by applicable law in such jurisdiction, and Seller hereby consents and agrees that such provision may be so judicially modified in any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in proceeding brought to enforce such restriction.
(d) In the event of any such breacha breach or threatened breach by Seller of the provisions of this Section 6.05, in addition Buyer shall be entitled to an injunction, specific performance, and such other remedies which equitable relief as may be availablenecessary to enforce the restrictions contained herein, and no bond, other security or proof of special damages shall be required in connection therewith. Nothing herein contained shall be construed as prohibiting Buyer from pursuing any other remedies available for such breach or threatened breach or any other breach of this Agreement.
(e) As a material inducement for Seller to enter into this Agreement, Buyer agrees that the restrictions set forth in Sections 6.05(a) through (d) shall apply to Buyer, mutatis mutandis, except that all references to the Company or the Business in such Sections shall have mean Seller, each of its other currently wholly-owned subsidiaries (other than the right to seek specific performance Company), and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary hereintheir respective current businesses.
Appears in 1 contract
Restrictive Covenants. (a) During In consideration of the term of this Agreement foregoing, the Employee agrees that he shall not:
A. during the Employment Period and for a period of one (1) one-year after following the termination or expiration thereofof the Employment Period for any reason, the Employee will not directly or indirectly:
(i) , alone or as an individual proprietor, a partner, stockholder, officer, employee, director, joint venturer, investor, lender, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employeeventure, officer, director, member, employee, consultant, agent, independent contractor or other shareholder of, or lender to, any company or business, engage in any business associate in the aerospace industry directly or indirectly in competition with the business of TIMCO or its affiliates (TIMCO and its affiliates being referred to herein collectively as the “Companies”) as such business now exists or as it may exist at the time of termination; provided, however, that, the beneficial ownership of less than five percent (5%) of the Company shares of stock of any other corporation having a class of equity securities actively traded on a national securities exchange or over-the-counter market shall not be deemed, in and of itself, to terminate their employment withviolate the prohibitions of this Section;
B. for a period of one-year following the termination of the Employment Period, directly or otherwise cease their business relationship with, the Company; or
indirectly (iiii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage induce any Person which is a customer of any of the clientsCompanies, customers to patronize any business in the aerospace industry directly or accountsindirectly in competition with business conducted by any of the Companies; (ii) canvass, solicit or accept from any Person which is a customer of any of the Companies, any such competitive business; or (iii) request or advise any Person which is a customer or supplier of any of the Companies, to withdraw, curtail or cancel any such customer’s or supplier’s business with any of the Companies, or prospective clientsits or their successors;
C. for a period of one-year following the Employment Period, customers directly or accountsindirectly employ, of the Company which were contactedor knowingly permit any TIMCO or business directly or indirectly controlled by him, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictionsto employ, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee person who was employed by any of the Company Companies, at or within the prior three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities months, or in too broad a geographic areaany manner seek to induce any such person to leave his or her employment;
D. at any time following the date hereof, it directly or indirectly, in any way outside of his employment with any of the Companies utilize, disclose, copy, reproduce or retain in his possession any of the Companies’ proprietary rights or records, including, but not limited to, any of its customer lists. Further, so long as Employee is in compliance with the provisions of Sections 6 and 7 hereof, Employee shall be interpreted entitled to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary receive each month for the protection one-year restrictive covenant period referred to above the amounts that Employee would have received under Section 4(B) of this Agreement had Employee been terminated without Cause. Notwithstanding the business foregoing, if Employee has been was terminated for “Cause or has voluntarily resigned from his employment with TIMCO, this restrictive covenant and goodwill the provisions of Section 7 below shall apply notwithstanding the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach non-payment of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary hereinseverance hereunder.
Appears in 1 contract
Restrictive Covenants. (a) During In further consideration of the term amounts to be paid by or on behalf of this Agreement and Purchaser hereunder, for a period of one five years commencing on the Closing Date (1) year after the termination or expiration thereof"Restricted Period"), the Employee will Seller shall not, and shall cause its Affiliates not to, whether directly or indirectly:
(i) indirectly and whether actively or passively, in the jurisdictions set forth on Section 5.20 of the Disclosure Schedules, whether as an individual proprietorprincipal, manager, agent, consultant, equity holder, partner, stockholder, officer, employee, director, joint venturer, investor, lender, member or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company)capacity, conduct, manage, operate, engage in, or have an ownership interest in any business or enterprise engaged in, any business or enterprise (or Subsidiary or division thereof) that directly or indirectly competes with the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; orBusiness.
(iib) During the Restricted Period, Seller shall, and shall cause its Affiliates not to, directly or indirectly, hire, engagesolicit, recruit, solicit or induce, or attempt to hire, solicit or induce, any current employees or prospective employee, officer, director, contractor independent contractors of Purchaser or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers its Affiliates (including any former employees or accounts, independent contractors who were employed or prospective clients, customers retained by Purchaser or accounts, any of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to its Affiliates at any individual or entity with which the Company has had substantive contact within time during the twelve month period prior to the solicitation), to leave the employ or service of Purchaser or any potential hiringof its Affiliates for any reason whatsoever; otherwise interfere with the relationship of Purchaser or any of its Affiliates with any such employees or independent contractor; or offer or provide employment (whether such employment is for Seller, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.its Affiliates
(c) Each Party shall not, and Seller shall cause its Affiliates not to and Purchaser shall cause the Transferred Entities not to, directly or indirectly through another Person, except to the extent done in good faith in any Proceeding against the other Party or any of their respective Affiliates or as otherwise protected by Law, (i) make any negative statement or communication regarding the other Party or any of their respective Affiliates with the intent to harm any such Person or (ii) make any derogatory or disparaging statement or communication regarding the other Party or any of their respective Affiliates. Nothing in this Section 5.20 shall limit any Party or their respective Affiliates' ability to make true and accurate statements or communications in connection with any disclosure such Party or their respective Affiliates reasonably believe is required pursuant to applicable Law. (d) Subject to this Section 5.20(d) or as otherwise permitted by this Agreement, Seller shall not, and shall cause its Affiliates not to, at any time disclose or use any Confidential Information relating to the Business of which Seller or its Affiliates is or becomes aware. Seller shall take all commercially reasonable steps to safeguard Confidential Information relating to the Business and to protect it against disclosure, misuse, espionage, loss and theft. In the event Seller or any of its Affiliates is required by Law to disclose any Confidential Information relating to the Business, Seller shall, to the extent legally permissible, promptly notify Purchaser in writing, which notification shall include the nature of the legal requirement and the extent of the required disclosure, and Seller shall reasonably cooperate with Purchaser, at Purchaser's sole cost and expense, to preserve the confidentiality of such information consistent with applicable Law. The restrictions contained foregoing shall not, however, prohibit disclosure by any Person of Confidential Information relating to the Business that (i) has been published in Sections 6a form generally available to the public other than as a result of Seller's or any of Seller's Affiliates' acts or omissions to act prior to the date such Person proposes to disclose such information or (ii) is required to be disclosed pursuant to any applicable Law or court order.
(e) During the Restricted Period, 7 Seller shall not, and 8 are necessary Seller shall cause its Affiliates not to, directly or indirectly, call on, solicit, or induce, or attempt to solicit or induce, any contractor, service provider, vendor, agent, client, customer, supplier, licensor or other business relation of the Business for the protection purpose of causing, or that would reasonably be expected to cause, any thereof to modify or terminate their relationship (contractual or otherwise) with the Transferred Entities (in whole or in part), or to refrain from entering into a relationship (contractual or otherwise) with the Transferred Entities, or otherwise materially interfere with any such relationship with the Transferred Entities.
(f) For purposes of this Section 5.20, (i) the "Business" means the Business as conducted by the Transferred Entities on the Closing Date, and (ii) "Affiliates" shall not include any actual or potential acquiror of Seller or any of its Affiliates ("Acquiror") (provided that the acquisition of Seller or its Affiliates shall not limit the applicability of the business and goodwill of the Company and are considered by the Employee restrictive covenants herein to Seller or its Affiliates; provided, further, that it shall be reasonable for such purpose. The Employee agrees that any deemed a breach of Sections 6this Section 5.20 if such Acquiror takes any action for the benefit of Seller or its Affiliates that, 7 if such action were taken by Seller or 8 will cause the Company substantial and irrevocable damage and thereforeits Affiliates, in the event would constitute a breach of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary hereinthis Section 5.20).
Appears in 1 contract
Restrictive Covenants. The Executive will not, without the Company’s prior written consent, which shall not be unreasonably withheld, or as otherwise specifically provided herein:
(a) During during the term of this Agreement and for a period of one (1) year after the termination Restricted Period, engage or expiration thereofparticipate in, the Employee will not directly or indirectly:
, alone or as principal, agent, employee, employer, consultant, investor or partner of, or assist in the management of, or provide advisory or other services to, or own any stock or any other ownership interest in, or make any financial investment in any business or entity which is Competitive with the Company (as defined below) or purchase any property which could reasonably be used to provide or develop a business that is Competitive with the Company, except that Executive may (i) directly or indirectly own, solely as an individual proprietorinvestment, partnersecurities of any business or entity engaged in a business that is Competitive with the Company if Executive does not, stockholderdirectly or indirectly, officerown 5% or more of any class of securities of such business or entity, employeeand (ii) serve on the board of directors of any not-for-profit or for-profit company or other organization;
(b) during the Restricted Period, directorbe personally and directly involved in any material manner or fashion with any discussions, joint venturernegotiations, investoranalysis or other activities associated with the Excluded Projects (as defined below), lender, whether on behalf of or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company)concert with Purchaser and its affiliates or otherwise; provided, engage in the business of developinghowever, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold that is agreed and acknowledged by the Company while the Employee was employed by the Companythat Executive’s supervision and management of employees involved in any such activities shall not be a violation of subparagraphs 9(a) or 9(b); orand
(iic) hireduring the Restricted Period, engagesolicit or attempt to hire or employ, recruitin any fashion (whether as an employee, independent contractor or otherwise), any employee of the Company or the Subsidiaries or solicit or induce, or attempt to solicit or induce, any current or prospective employee, officer, director, contractor or other business associate of the Company Company’s or any of its affiliates’ employees, consultants, clients, customers, vendors, suppliers or independent contractors to terminate their employment withrelationship with the Company and/or its affiliates; provided, or otherwise cease their business relationship withhowever, that, for the portion of the Restricted Period following the Agreement Term, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” foregoing shall not apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was has been employed by the Company within the three (3) or any of its affiliates for less than six months preceding any potential prior to such solicitation or hiringwhose employment has been terminated by the Company and affiliates prior to such solicitation and nothing in this subparagraph 9(c) shall prohibit general solicitations for employment through advertisements.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(cd) The restrictions contained in Sections 6, 7 and 8 are necessary for Company acknowledges that (i) during the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and thereforeDamages Window, in the event of any such breach, alleged or actual breach of any of the provisions of this paragraph 9 by the Executive that is reasonably likely to result in addition material and adverse consequences to such other remedies which may be availablethe Company, the Company will, before exercising any remedies of any type, give Executive notice of such alleged or actual breach and afford him a reasonable opportunity to cure any such alleged or actual breaches, if curable, during a period of at least five (5) business days, and (ii) following the expiration of the Damages Window, in all cases involving any alleged or actual breach of any of the provisions of this paragraph 9 by the Executive, the Company’s sole remedy shall have the right be limited to seek specific performance and injunctive relief injunctions restraining the Executive from committing or continuing any such violation of this paragraph 9, and such remedies may only be sought to be exercised by the Company following the provision of notice to Executive and affording him a reasonable opportunity to cure any alleged breaches thereof, if curable, during a period of at least five (5) business days, and that this subparagraph 9(d)(ii) is expressly intended to act as, and bind the Company, as an election and waiver of remedies
(e) For the avoidance of doubt, (i) Executive is precluded from being personally involved in any court material manner or fashion with any discussions, negotiations, analysis or other activities associated with the Excluded Projects, whether on behalf of competent jurisdictionor in concert with Purchaser and its affiliates or otherwise but Executive’s supervision and management of employees involved in, regardless or employed by an entity involved in, any such activities shall not be a violation of subparagraphs 9(a) or 9(b) hereof, and (ii) Executive’s services for Catellus, including any statement activities permitted to be engaged in by Catellus or its affiliates, including TPG, in accordance with the contrary herein.Purchase Agreement, the Transition Services Agreement or any arrangement contemplated thereby, other than the Excluded Projects, shall not be prohibited by this paragraph 9. For purposes of this Agreement:
Appears in 1 contract
Samples: Employment Agreement (Prologis)
Restrictive Covenants. (a) During the term of this Agreement Each Seller hereby covenants and agrees that for a period of one three (13) year years after the termination or expiration thereofClosing Date (the “Restricted Period”), the Employee it will not engage in the Business or own an interest in, directly or indirectly:
(i) , any individual proprietorship, partnership, corporation, joint venture, or any other form of business entity, whether as an individual proprietor, a partner, stockholder, officer, employee, director, shareholder, joint venturer, investor, lender, venturer or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company)manner whatsoever, engage if such entity is engaged in whole or in part in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold Business as conducted by the Company while and the Employee was employed by Subsidiary on the Companydate hereof; or
provided, however, that nothing contained in this paragraph shall be deemed to prohibit any Seller from (i) owning 5% or less of the shares of a publicly-held company engaged in the Business or (ii) hireserving as an employee of a business entity that engages in the Business but whose principal business is other than the Business and in which such Seller will not be providing any services relating to the Business; provided, engagehowever, recruitthat such Seller will not be engaged in, solicit responsible for or induce, or attempt have access to induce, any current or prospective employee, officer, director, contractor or other business associate part of the Company to terminate their employment with, or otherwise cease their business relationship with, entity engaged in the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringBusiness.
(b) In addition to the foregoing, each Seller hereby covenants and agrees that during the Restricted Period it will not, directly or indirectly, as principal, agent, trustee or through the agency of any corporation, partnership, association, agent or agency (i) employ (including to retain, engage or conduct business with) or attempt to employ or assist anyone else to employ any person who is then or at any time during the preceding year was an employee (other than non-executive administrative personnel) of the Company or the Subsidiary; provided that the foregoing provision shall not prohibit such Seller from making any general solicitation of employment not specifically directed to such persons or from soliciting or hiring any such person who terminated his or her employment with the Company or the Subsidiary or whose employment was terminated by the Company or the Subsidiary prior to such solicitation or hiring, (ii) solicit any of the business of the Company or the Subsidiary from any customer of the Company or the Subsidiary or (iii) request or advise any customer of the Company or the Subsidiary to withdraw, curtail or cancel such customer’s business with the Company or the Subsidiary.
(c) Each Seller agrees that it will not disclose to any third party any Trade Secret that derives economic value from not being generally known to others and that is subject to efforts to maintain its confidentiality or secrecy of the Company or the Subsidiary or any client of the Company or the Subsidiary, or utilize such Trade Secret for the benefit of third parties. For purposes of this clause (c), a Trade Secret shall not include (i) information that is or becomes generally available without any breach of this clause (c); (ii) information independently developed by a Seller outside of the operation of the Business and (iii) information obtained from a third party entitled to disclose it.
(d) If any restriction set forth Seller breaches any of the provisions of this Section 5.2, the Buyer or the Company shall have the right to have the provisions of this Section 5.2 specifically enforced by any court having equity jurisdiction without being required to post bond or other security and without having to prove the inadequacy of the available remedies of law, it being acknowledged and agreed that such breach or threatened breach will cause irreparable injury to the applicable Party and that money damages will not provide an adequate remedy to such Party. In addition, either the Company or the Buyer may take all such other actions and remedies available to it under law or in equity and shall be entitled to such damages as it can show it has sustained by reason of such breach.
(e) The Parties acknowledge that the restrictive covenants above are necessary in order to protect and maintain the Trade Secrets, Assets and goodwill acquired by the Buyer in connection with the purchase of the Shares pursuant to this Agreement and to prevent the usurpation by any Seller of all or any portion of the goodwill purchased by the Buyer under this Agreement, and that the time, scope, geographic area and other provisions of Sections 5.2(a), (b) and (c) have been specifically negotiated by sophisticated commercial parties and agree that all such provisions are reasonable under the circumstances of the transactions contemplated by this Agreement and are given as an integral and essential part of the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 6 is found 5.2 shall be determined by any court of competent jurisdiction to be unenforceable because it extends by reason of its extending for too long great a period of time or over too great a range geographical area or by reason of activities or its being too extensive in too broad a geographic areaany other respect, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic time for which it may be enforceable and/or over the maximum geographical area as to which it may be enforceable, and/or to the maximum extent in all other respects as to which it may be enforceable, all as determined by such court in such action.
(cf) Each Seller acknowledges that the Buyer and the Sellers intend to and hereby confer jurisdiction to enforce the covenants contained in this Section 5.2 upon the courts of any state or any jurisdiction within the geographical scope of such covenants in which a breach or alleged breach of a covenant contained herein has occurred. In the event that the courts of one or more of such states or other jurisdictions shall hold such covenants unenforceable (in whole or in part) by reason of the breadth of such scope or otherwise, it is the intention of the parties hereto that such determination not bar or in any way affect the right of the Buyer or the Company to the relief provided above in the courts of any other states or other jurisdictions within the geographical scope of such covenants, as to breaches of such covenants in such other respective states or other jurisdictions, the above covenants as they relate to each other jurisdiction being, for this purpose, severable into diverse and independent covenants.
(g) The restrictions contained in Sections 6, 7 Parties acknowledge and 8 are necessary for agree that Xxx Xxxxx is entering into the protection obligations of the business and goodwill this Section 5.2 as an employee of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary hereinnot as a Shareholder.
Appears in 1 contract
Restrictive Covenants. (a) During the term of this Agreement and for For a period of one (1) year five years from and after the termination or expiration thereofClosing Date, the Employee will Sellers shall not, and shall cause their respective Affiliates not to, directly or indirectly:
(i) , whether as an individual proprietorprincipal, partner, stockholder, officer, employee, director, joint venturer, investor, lender, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor employee, consultant, manager, member or stockholder, own, manage, operate, participate in, control or acquire ownership or voting control of, perform services for or otherwise carry on or engage in, a Competing Business in the United States or Canada; provided, however, that nothing contained herein shall preclude, prohibit or restrict Sellers or any of their respective Affiliates from engaging in any manner in any (A) Financial Services Business, (B) Existing Business Activities, (C) De Minimis Business, or (D) business activity that would otherwise violate this Section 5.2(a) that is acquired from any Person (an “After-Acquired Business”) or is carried on by any Person that is acquired by or combined with NCH or any of its Affiliates in each case after the Closing Date (an “After-Acquired Company”); provided, that with respect to (i) ownership interests or securities received as a result of Default Recovery Activities or (ii) clause (D), so long as within one year after the consummation of the receipt of such ownership interests or securities or the purchase or other business associate acquisition of the Acquired Business or the Acquired Company, NCH or such Affiliate completes the divestiture of such ownership interests or securities or the relevant portion of the business or securities of the Acquired Business or the Acquired Company to terminate their employment with, or otherwise cease their at the expiration of such one-year period the business relationship with, of the Company; orAfter-Acquired Business or the After-Acquired Company complies with this Section 5.2(a).
(iiib) For a period of five years from and after the Closing Date, Sellers shall not, and shall cause their Affiliates not to, directly or indirectly, solicit, divert or take away, or attempt to solicit, divert or to take away, the business or patronage of any customer or supplier with whom Sellers have established (or is actively seeking to establish, if such fact is known to Sellers) a business relationship as of the clientsClosing, customers to the extent such business is Related to the Business; provided, however, that nothing contained herein shall preclude, prohibit or accounts, restrict Sellers or prospective clients, customers any of their respective Affiliates from engaging in any manner in any Existing Business Activities or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the CompanyDe Minimis Business.
(ivc) For During the purposes period commencing on the Closing Date and ending 36 months thereafter, Sellers agrees that they shall not, and shall cause their respective Affiliates not to, directly or indirectly, hire, engage, solicit to hire (or assist or encourage others to) or in any way interfere with the employment or consulting relationship of these restrictionsany Transferred Employee as of immediately following the Applicable Transfer Time (any such employee, a “Restricted Buyer Employee”); provided however, that, (i) Sellers shall not be precluded from engaging in general solicitations or advertising for personnel, including advertisements and searches conducted by a headhunter agency (and any hiring of non-corporate level Business Personnel resulting from such searches); provided that such solicitation, advertising or searches are not directed in any way at any Transferred Employee; and (ii) the word “prospective” foregoing restrictions shall apply be inapplicable to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed Restricted Buyer Employee whose employment is terminated by the Company within the three Buyer or who voluntarily ceases employment with Buyer or its Affiliates (3without inducement by Sellers or their Affiliates) beginning six months preceding any potential solicitation following such termination or hiringvoluntary cessation of employment.
(bd) If any restriction Sellers acknowledge and agree that the scope of the restrictive covenants set forth in Sections 5.2(a), 5.2(b) and 5.2(c) above are reasonably tailored, and not broader than necessary, to protect the legitimate business interests of Buyer. If any term or provision of this Section 6 is found 5.2 shall be determined by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time invalid, illegal or over too great a range of activities unenforceable, in whole or in too broad a geographic areapart, it and such determination shall become final, such provision or portion shall be interpreted deemed to extend be severed or limited, but only over to the maximum period extent required to render the remaining terms and provisions of time, range of activities or geographic area this Section 5.2 enforceable. This Section 5.2 as thus amended shall be enforced so as to which it may be enforceablegive effect to the intention of the parties hereto insofar as possible. In addition, the parties hereto hereby expressly empower a court of competent jurisdiction to modify any term or provision of this Section 5.2 to the extent necessary to comply with any Law and to enforce this Section 5.2 as so modified.
(ce) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees Sellers acknowledge that any a breach or threatened breach of Sections 6this Section 5.2 would give rise to irreparable harm to Buyer, 7 or 8 will cause the Company substantial for which monetary Damages would not be an adequate remedy, and irrevocable damage and therefore, hereby agree that in the event of a breach or a threatened breach by Sellers of any such breachobligations, Buyer shall, in addition to any and all other rights and remedies that be available to it in respect of such other remedies which may breach, be availableentitled to equitable relief, the Company shall have the right to seek including a temporary restraining order, an injunction, specific performance and injunctive any other relief in any that may be available from a court of competent jurisdiction.
(f) This Section 5.2 shall cease to be applicable to any Person at such time as it is no longer an Affiliate of NCH and shall not apply to any Person that purchases assets, regardless operations or a business from NCH or one of any statement to the contrary hereinits Affiliates, if such Person is not an Affiliate of NCH after such transaction is consummated.
Appears in 1 contract
Samples: Asset Purchase Agreement (Lawson Products Inc/New/De/)
Restrictive Covenants. (a) During the term period beginning on the Closing Date and ending on the fifth anniversary of the Closing Date (the “Restricted Period”), each Shareholder covenants and agrees not to, and shall cause its respective Affiliates not to, directly or indirectly and anywhere in the Restricted Territory, conduct, manage, operate, engage in, or have an ownership interest in any business or enterprise engaged in (i) the Business, or (ii) any activities that are otherwise similar to, or competitive with, the Business. Notwithstanding the provisions of this Agreement and for a period of one (1) year after the termination or expiration thereofSection 5.2(a), the Employee will beneficial ownership of less than five percent of the shares of stock or other equity interests of any corporation or other entity having a class of equity securities actively traded on a national securities exchange or over-the-counter market and not formed for the purpose of circumventing this Agreement shall not be deemed to violate the provisions of this Section 5.2(a).
(b) During the Restricted Period, each Shareholder covenants and agrees not to, and shall cause its respective Affiliates not to, directly or indirectly:
(i) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruitcall-on, solicit or induce, or attempt to solicit or induce, any current Person which is or was a past, present or prospective employee, officer, director, contractor customer or other business associate relation of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any as of the clients, customers Closing Date for the provision of products or accounts, or prospective clients, customers or accounts, of services related to the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities Business or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceableany other manner that would otherwise interfere with business relationships between Parent and such customers and other business relations.
(c) The restrictions contained in Sections 6During the Restricted Period, 7 each Shareholder covenants and 8 are necessary for agrees not to, and shall cause its respective Affiliates not to, directly or indirectly, call-on, solicit or induce, or attempt to solicit or induce, any Person who was employed or engaged as an independent contractor by the protection Company on or at any time before the Closing Date, to leave the employ or engagement of the Company, the Surviving Company or their Affiliates (including Parent) for any reason whatsoever, nor shall any Shareholder offer or provide employment (whether such employment is for a Shareholder or any other Person), either on a full-time basis or part-time or consulting basis, to any such Person.
(d) Shareholders acknowledge and agree that the provisions of this Section 5.2 are reasonable and necessary to protect the legitimate business interests of Parent and goodwill its acquisition of the Company and are considered by Company. None of the Employee to be reasonable Shareholders shall contest that Xxxxxx’s remedies at law for such purpose. The Employee agrees that any breach or threat of Sections 6breach by any Shareholder or any of their respective Affiliates of the provisions of this Section 5.2 may be inadequate, 7 and that Parent shall be entitled to an injunction or 8 will cause injunctions to prevent breaches of the Company substantial provisions of this Section 5.2 and irrevocable damage to enforce specifically such terms and therefore, in the event of any such breachprovisions, in addition to such any other remedies remedy to which Parent may be availableentitled at law or equity. The restrictive covenants contained in this Section 5.2 are covenants independent of any other provision of this Agreement or any other agreement between the Parties hereunder and the existence of any claim which any Shareholder may allege against Parent under any other provision of the Agreement or any other agreement will not prevent the enforcement of these covenants.
(e) If any of the provisions contained in this Section 5.2 shall for any reason be held to be excessively broad as to duration, scope, activity or subject, then such provision shall be construed by limiting and reducing it, so as to be valid and enforceable to the Company shall have extent compatible with the right to seek specific performance and injunctive relief in any applicable Law or the determination by a court of competent jurisdiction, regardless of any statement to the contrary herein.
Appears in 1 contract
Samples: Merger Agreement (Transcat Inc)
Restrictive Covenants. (a) During the term of this Agreement and for For a period of one twenty-four (124) year after months from the termination or expiration thereofClosing Date, Xxxx Xxxxx and Xxxxxxx Xxxxxxx (each, a “Restricted Person” and, together, the Employee will not “Restricted Persons”) shall not, directly or indirectly:
(i) as hire, solicit, encourage or induce any person or entity that is or was an individual proprietoremployee or independent contractor of Buyer, partnerthe Company or any of their Affiliates within two (2) years prior to the date hereof to: (1) become an employee or independent contractor of the Restricted Person, stockholder, officer, employee, director, joint venturer, investor, lenderany Affiliate of the Restricted Person, or in any other capacity whatsoever (other than as the holder competitor of not more than one percent (1%) of the total outstanding stock of a publicly held company)Buyer, engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while or their Affiliates; or (2) terminate or diminish their employment or engagement with Buyer, the Employee was employed by Company or their Affiliates, or otherwise interfere with the Companyrelationship between Buyer, the Company or their Affiliates and such current or former employee or independent contractor. For purposes of this Section 5.09, “Affiliate” shall include, but not be limited to, Xxxxxxx Xxxxxxx, Xxxx Xxxxx, and Xxxxxx Global Inc.; orprovided, however, that the foregoing restriction shall not apply to Xxxx Xxxxxxxx, nor to any family member of any Restricted Person;
(ii) hirecontact, engagesolicit, recruit, solicit or induceencourage, or attempt to induceinduce any person or entity who is a current supplier, any current vendor, service provider, licensor, lessor, distributor, wholesaler or prospective employeecustomer of Buyer, officer, director, contractor the Company or other business associate their Affiliates as of the Company Closing Date to terminate or reduce their employment withbusiness with Buyer, the Company or their Affiliates, or otherwise cease their business interfere with the relationship withbetween Buyer, the CompanyCompany or their Affiliates and such current, former or prospective supplier, vendor, service provider, licensor, lessor, distributor, wholesaler, customer, or prospective customer as of the Closing Date; or
(iii) solicitengage or render any assistance or advice to any person, divert or take awayentity, or attempt business within the United States of America that offers any products or services competitive or alternative to divert those offered, sold, or to take away, developed by the business or patronage of any Company as of the clients, customers Closing Date or accountswithin the twelve (12) months prior to the Closing Date, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within took affirmative steps to offer, sell, or develop as of the twelve month period prior to Closing Date, including as an owner, member, partner, stockholder, director, manager, officer, 76 employee, agent, independent contractor, consultant, or advisor, whether as an owner, member, partner, stockholder, 77 director, manager, officer, employee, agent, independent contractor, consultant, or advisor. Notwithstanding the foregoing, Seller or its Affiliate’s performance pursuant to, or in connection with, the Consulting Agreement shall not be a violation of this Section 5.09, and further, nothing in this Agreement shall prohibit any potential hiring, solicitation, recruiting, diversion Seller or otherwise. In addition any Affiliate of any Seller from purchasing or owning less than five percent (5%) of the publicly-traded securities of any corporation as a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringpassive investment.
(b) If Each Restricted Person hereby covenants and agrees that, for a period of twenty- four (24) months following the date hereof, such Restricted Person shall not, and such Restricted Person shall cause each of its Affiliates to not, directly or indirectly, either individually or acting through or in concert with another Person or Persons make any negative, derogatory or disparaging statements or communications regarding, Buyer, the Company, their Affiliates with which the Restricted Person has had direct contact with or of which the Restricted Person had actual knowledge prior to the Closing, the business of Buyer, the Company or their respective Affiliates, or any of the products or services of Buyer, the Company or their respective Affiliates; provided that the foregoing shall not restrict or impede (i) any party to this Agreement or any Ancillary Documents from enforcing such Person’s rights (or any other party’s obligations) thereunder in accordance with this Agreement and applicable Law, or (ii) any Person or any of such Person’s Affiliates from making factually true statements to the extent necessary to exercise protected legal rights to the extent that such rights cannot be waived by agreement (including “whistleblowing”) or from providing truthful statements in response to any Governmental Authority, as and if required by Law.
(c) The duration of each and every covenant and restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it 5.09 shall be interpreted tolled and extended during any period when the Restricted Person is in violation of any covenant or restriction set forth in this Section 5.09, regardless of whether or not such violation is known to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceableBuyer.
(cd) The restrictions contained If the duration, geographical extent of, or business activities covered by, this Section 5.09 are in Sections 6excess of what is valid and enforceable under applicable law, 7 then such provision shall be construed to cover only that duration, geographical extent or activities that are valid and 8 are necessary for enforceable. Each Restricted Person acknowledges the protection uncertainty of the business law in this respect and goodwill expressly stipulates that this Agreement be given the construction which renders its provisions valid and enforceable to the maximum extent (not exceeding its express terms) possible under applicable law.
(e) Each Restricted Person acknowledges and agrees that such Restricted Person is a trustee and beneficiary of a Seller and has received or will receive material consideration in respect of such interests in connection with the consummation of the transactions contemplated under this Agreement, including, without limitation, (i) the Sellers’ receipt of the Purchase Price, (ii) payments pursuant to the Notes, and/or (iii) payments pursuant to the Consulting Agreement, and that the transactions contemplated under this Agreement involve the sale of ownership and control of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement Parent (including as successor to the contrary hereinbusiness of Company).
Appears in 1 contract
Restrictive Covenants. (a) During The Executive agrees that, during the term of this Agreement Agreement, including an extension thereof, and for a period of one (1) year after the termination or expiration thereofthereafter, the Employee will not she shall not, directly or indirectly:
(ia) as an individual proprietoron Executive's own behalf or on behalf of any other person or entity, partnersolicit, stockholdercontact, officercall upon, employee, director, joint venturer, investor, lendercommunicate with, or in attempt to communicate with any other capacity whatsoever (other than as the holder of not more than one percent (1%) person or entity who was a customer of the total outstanding stock Company at any time within the one-year period ending on the Date of a publicly held company), engage in the business Termination or any representative of developing, producing, marketing or selling services any such customer of the kind Company, with the intent or type developed purpose of selling or being developed, produced, marketed providing of any product or service competitive with any product or service sold or provided or under development by the Company while during the Employee was employed period of one year immediately preceding termination of Executive's employment and which is still being offered by or is still under development by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.and
(b) If employ or attempt to employ or assist anyone else in employing in any restriction set forth in this Section 6 Competing Business any person who, at any time within the period commencing one year prior to the Date of Termination and ending one year after the Date of Termination, was, is found by any court or shall be an employee of competent jurisdiction to be unenforceable because it extends for too long a period of the Company (whether or not such employment is full-time or over too great is pursuant to a range of activities or in too broad a geographic area, it shall be interpreted to extend only over written contract with the maximum period of time, range of activities or geographic area as to which it may be enforceableCompany).
(c) The restrictions contained Notwithstanding anything in Sections 6, 7 and this Section 8 are necessary for or Section 9 below to the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and thereforecontrary, in the event event, for whatever reason, Executive is not actively employed under this agreement for at least two years, then Executive shall be entitled to use and disclose for her own benefit, or for the benefit of others any such breachinformation acquired by her prior to employment hereunder or acquired by her in conjunction with any of the customers or accounts listed on the attached Appendix B. Furthermore, in addition such event, nothing in Section 8 or Section 9 shall prohibit, restrict, or otherwise affect Executive's right or ability to such other remedies which may be available, transact business with any of the Company shall have customers or accounts on said Appendix B. Whether for Executive's own benefit or for the right to seek specific performance and injunctive relief benefit of others.
(d) Notwithstanding anything in any court of competent jurisdiction, regardless of any statement this Section 8 or Section 9 below to the contrary hereincontrary, performance by Executive of her duties for ICCS as described in Section 1 (b) shall not constitute a breach or violation of Section 8 or Section 9 hereof.
Appears in 1 contract
Samples: Employment Agreement (Healthcare Network Solutions Inc)
Restrictive Covenants. (a) During the term of this Agreement and for a period of one (1) year after the termination or expiration thereof, the Employee will not directly or indirectly:
(i) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) In consideration of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services grant of the kind or type developed or being developedRestricted Shares, produced, marketed or sold by Participant agrees that Participant will comply with the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction restrictions set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of during the time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceableperiods set forth herein.
(ca) The restrictions contained in Sections 6Subject to Section 6(c) below, 7 and 8 are necessary for the protection of the business and goodwill while Participant is an Employee or Consultant of the Company and are considered by during the Employee two-year period following termination of employment or service, Participant shall not knowingly perform any action, activity or course of conduct which is substantially detrimental to be reasonable for such purpose. The Employee agrees that any breach the businesses or business reputations of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and thereforeor any of its Subsidiaries, in including (i) soliciting, recruiting or hiring (or attempting to solicit, recruit or hire) any employees of the event Company or any of its Subsidiaries or any persons who have worked for the Company or any of its Subsidiaries during the 12-month period immediately preceding such breachsolicitation, in addition recruitment or hiring or attempt thereof; (ii) intentionally interfering with the relationship of the Company or any of its Subsidiaries with any person or entity who or which is employed by or otherwise engaged to such perform services for, or any customer, client, supplier, licensee, licensor or other remedies which may be availablebusiness relation of, the Company shall have the right to seek specific performance and injunctive relief or any of its Subsidiaries; or (iii) assisting any person or entity in any court way to do, or attempt to do, anything prohibited by the immediately preceding clauses (i) or (ii)
(b) Subject to Section 6(c) below, Participant shall not disclose to any unauthorized person or entity or use for Participant’s own purposes any Confidential Information without the prior written consent of competent jurisdictionthe Company, regardless of any statement unless and to the contrary herein.extent that the Confidential Information becomes generally known to and available for use by the public other than as a result of Participant’s acts or omissions in violation of this Agreement; provided, however, that if Participant receive a request to disclose
Appears in 1 contract
Samples: Employee Restricted Share Award Agreement (Michael Kors Holdings LTD)
Restrictive Covenants. (a) During the term of As an inducement to Parent and Merger Sub to execute and deliver this Agreement and to consummate the Transactions and to protect the value and goodwill of the Company (and the Surviving Corporation) and the Business, each Principal covenants and agrees that, for a period commencing at Closing and ending on the third (3rd) anniversary of one the Closing Date (1) year after the termination or expiration thereof“Restricted Period”), the Employee will such Principal shall not and shall cause such Principal’s Affiliates not to, directly or indirectly:
(i) as an individual proprietorown, partnermanage, stockholderoperate, control, render service to, or participate in the ownership, management, operation or control of any Competitor anywhere in the United States of America;
(ii) employ or solicit, or receive or accept the performance of services by any then current officer, employeemanager, directoremployee or independent contractor of the Company, joint venturerthe Surviving Corporation, investorParent or any parent, lenderSubsidiary or other Affiliate of the Company, the Surviving Corporation or Parent, or in any way interfere with the relationship between the Company, the Surviving Corporation, Parent or any parent, Subsidiary or other capacity whatsoever (other than as the holder of not more than one percent (1%) Affiliate of the total outstanding stock of a publicly held company)Company, engage in the business of developingSurviving Corporation or Parent, producingon the one hand, marketing and any such officer, manager, employee or selling services of independent contractor, on the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Companyother hand; or
(iiiii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employeecustomer, officersalesperson, directordistributor, contractor supplier, vendor, manufacturer, representative, agent, jobber, licensee or other Person transacting business associate with the Company, the Surviving Corporation, Parent or any parent, Subsidiary or other Affiliate of the Company Company, the Surviving Corporation or Parent (collectively the “Customers” and “Vendors”) to terminate their employment withreduce or cease doing business with the Company, the Surviving Corporation or Parent or any parent, Subsidiary or other Affiliate of the Company, the Surviving Corporation or Parent, or otherwise cease their business in any way to interfere with the relationship withbetween any such Customer or Vendor, on the one hand, and the Company, the Surviving Corporation or Parent or any parent, Subsidiary or other Affiliate of the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business Surviving Corporation or patronage Parent, on the other hand. provided, however, that Section 5.02(a)(i) shall not prohibit a Principal from owning shares of stock of any corporation having a class of equity securities actively traded on a national securities exchange or on the clientsNasdaq Stock Market which represent, customers or accountsin the aggregate, or prospective clients, customers or accounts, not more than 1% of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringsuch corporation’s fully-diluted shares.
(b) If After the Closing, each of the Principals, each Holder and the Representative covenants and agrees that such Principal, Holder and/or Representative shall not and shall cause each of their respective Affiliates and representatives not to, directly or indirectly, (i) use, disclose, reverse engineer or otherwise exploit any restriction set forth Confidential Information for any purpose, except as specifically authorized in writing by Parent, (ii) keep or make copies of any documents, records or property containing any Confidential Information, (iii) use, disclose, reverse engineer or otherwise exploit any Company Intellectual Property for any purpose, or (iv) assist any other Person in engaging in any of the foregoing. Notwithstanding the foregoing, a Principal, Holder or the Representative may disclose Confidential Information at such times, in such manner and to the extent such disclosure is required by applicable Law, provided that such Principal, Holder or Representative, as applicable, (A) provides Parent with prior written notice thereof, (B) limits such disclosure to what is strictly required and (C) attempts to preserve the confidentiality of any Confidential Information so disclosed. Nothing in this Section 6 Agreement reduces any obligation of any Principal, Holder or the Representative to comply with applicable Laws relating to trade secrets, confidential information and unfair competition. If, at any time after the Closing, any Principal, Holder or the Representative discovers that he, she or it is found by in possession of any court records containing any Confidential Information, then the discovering Principal, Holder or Representative shall immediately deliver such records to Parent. No Principal, Holder or Representative shall assert a waiver or loss of competent jurisdiction to be unenforceable because it extends for too long a period confidential or privileged status of time the information based upon such possession or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceablediscovery.
(c) In the event of a breach or violation by a Principal during the Restricted Period of any restriction in Section 5.02(a), the Restricted Period shall be tolled until such breach or violation has been cured. Each Principal agrees that prior to accepting employment with any other Person during the Restricted Period, such Principal shall provide such prospective employer with written notice of the existence of this Section 5.02 and the provisions under this Section 5.02, with a copy of such notice delivered simultaneously to Parent and the Surviving Corporation.
(d) The Parties acknowledge and agree that the restrictions contained in Sections 6this Section 5.02 are reasonable (including as to scope, 7 time and 8 are area), not unduly restrictive of the Principals’ or the Holders’ or the Representatives’ or their respective Affiliates’ or representatives’ respective rights, supported by adequate consideration and necessary for the protection of the business immediate interests of Parent, and goodwill any violation of the Company these restrictions would cause immediate and are considered by the Employee irreparable injury to Parent for which there would be reasonable for such purposeno adequate monetary damages. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in In the event of a breach or a threatened breach by any Principal, Holder or the Representative (or any of their respective Affiliates or representatives) of such breachrestrictions, the Principals, the Holders and the Representative acknowledge and agree that Parent shall be entitled to an injunction restraining such Principal, Holder, Representative (or their respective Affiliates or representatives as applicable) from such breach or threatened breach without the requirement of posting bond, in addition to such any other remedies remedy to which Parent may be availableentitled at law or in equity. If any court determines that any provision of this Section 5.02 is unenforceable, the Company shall such court will have the right power to seek specific performance and injunctive relief reduce the duration or scope of such provision, as the case may be, or terminate such provision until, in any court of competent jurisdictionsuch reduced form, regardless of any statement to the contrary hereinsuch provision shall be enforceable.
Appears in 1 contract
Samples: Merger Agreement (Health Insurance Innovations, Inc.)
Restrictive Covenants. (a) During Each of the term of this Agreement Sellers and for Seller Entities (each a "Restricted Person") agrees that, during the period of one commencing on the Closing Date and ending on the fifth (15th) year after anniversary thereof (the termination "Restricted Period"), it or expiration thereof, the Employee he will not (and will not permit any of its or his respective Affiliates to) do any of the following, whether directly or indirectly, whether for itself or himself or on behalf of or with any other Person (including any division, group or franchise of a larger organization), and whether as a principal, agent, shareholder, participant, partner, promoter, director, officer, manager, member, equity owner, lender, employee, consultant, sales representative or otherwise:
(i) as an individual proprietorown, partnercontrol, stockholder, officer, employee, director, joint venturer, investor, lendermanage, or participate in the ownership, control or management of, or render services, assistance or advice to, or have a financial interest in, or lend its name to, any business engaged in, or that is undertaking to become engaged in any business that competes with, or is otherwise engaged in, all or any portion of the Acquired Business, in each case, within the United States of America and any other capacity whatsoever (other than place in which the Buyer conducts the Acquired Business after the Closing Date; provided, that the foregoing shall not prohibit the ownership by a Seller, as the holder a passive investment, of not more than one percent (1%) % of the total outstanding capital stock of any corporation that competes with the Acquired Business that is traded on a publicly held company), engage national securities exchange so long as he has no active participation in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; orsuch corporation;
(ii) hire, engage, recruit, solicit or induce(A) solicit, or attempt to induceassist in the solicitation of any customer, any current former customer (in the last twelve (12) months) or prospective employee, officer, director, contractor or other business associate customer of the Company Seller Entities or the Buyer for the purpose of selling, providing or soliciting to terminate their employment withsell or provide any product or service of the Acquired Business; or (B) accept business from (with or without solicitation) any customer, former customer (in the last twelve (12) months) or otherwise cease their business relationship with, prospective customer of any Seller Entity or the Company; orBuyer with respect to a product or service of the Acquired Business;
(iii) solicit, divert or take awayassist in the solicitation of, any Transferred Employee or other Person employed or engaged by the Buyer in any capacity (as an employee, independent contractor or otherwise, whether directly or indirectly) for the purpose of inducing such Person to terminate such employment or other engagement, whether or not such employment or engagement with the Buyer (or its Affiliates or subsidiaries) is pursuant to a contract or at-will, or hire any such Transferred Employee or other Person;
(iv) interfere with, or attempt to divert interfere with, any business relationship (whether formed before, on or after the date of this Agreement) between the Buyer and any of its or the Acquired Business's customers, suppliers, distributers, landlords, or other Persons with which any of them have a business relationship, including persuading or attempting to take awaypersuade any such Person to cease to do business with the Buyer or the Acquired Business, reduce the amount of business that it historically has done with the Buyer or patronage the Acquired Business, or otherwise adversely alter its business relationship with the Buyer or the Acquired Business; or
(v) knowingly or intentionally, directly or indirectly, orally, in writing or otherwise, make any disparaging statement or remark or damage or destroy the goodwill and esteem of Buyer or any Affiliate or subsidiary of Buyer, any of the clientsAssets or the Acquired Business with suppliers, customers employees, customers, and any others who may at any time have or accountshave had business relations with Buyer, any Affiliate or subsidiary of Buyer, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringAcquired Business.
(b) If Each Seller hereby acknowledges that it is familiar with the Trade Secrets of the Seller Entities and with other Confidential Information. Each Restricted Person will not (and will cause its or his respective Affiliates not to), directly or indirectly, reveal, divulge, or disclose, at any restriction time or for any reason or in any manner, any Confidential Information, unless such disclosure is on behalf of the Buyer in the course of performing the Seller's duties and responsibilities under his Employment Agreement, or is made with the express written consent of the Buyer. A Restricted Person will not (and will cause its or his respective Affiliates not to), directly or indirectly, use or duplicate any Confidential Information for any purpose other than in the performance of his duties and responsibilities for the Buyer under his Employment Agreement. The foregoing covenants shall not apply to any information that is required to be disclosed by subpoena or other mandatory legal process, provided that the Restricted Person shall, unless prohibited by law, promptly give the Buyer notice of any request or demand for disclosure of such Confidential Information upon receipt of such request or demand along with a copy of any written correspondence, pleading or other communications concerning the request or demand; the Restricted Person shall use commercially reasonable efforts to the extent legally permissibly, to obtain at Buyer's expense, and upon request, provide reasonable cooperation should the Buyer seek to obtain, an appropriate protective order at Buyer's expense and, if the Buyer does not obtain a protective order after a period that is reasonable under the circumstances, the Restricted Person may only disclose that portion of the Confidential Information that counsel to the Restricted Person advises it or him that it or he is legally compelled to disclose or else stand liable for contempt or suffer censure or penalty. Each Restricted Person will (and will cause its or his respective Affiliates to) deliver promptly to the Buyer and/or destroy (with a written certification of such submitted to the Buyer), at the request and option of the Buyer, all tangible and electronic embodiments (and all copies) of the Confidential Information which are in its or his possession or under its or his control.
(c) Each Restricted Person acknowledges, stipulates, and agrees that the covenants and restrictions set forth in this Section 6 is found 4.6 (the "Restrictive Covenants") are reasonable as to geographical area, time, and line of business, and are reasonably necessary to protect legitimate business interests of the Buyer; that their agreement to the Restrictive Covenants are a material inducement to the Buyer to enter into this Agreement and the other Transaction Documents and to perform its obligations hereunder and thereunder; and that the Buyer would not obtain the benefit of the bargain set forth in this Agreement and the other Transaction Documents as specifically negotiated by the parties hereto if any Restricted Person breaches a Restrictive Covenant. Sellers hereby assign, transfer and convey all personal goodwill in the Seller Entities to the Buyer. If a court of competent jurisdiction or arbitration panel shall nevertheless determine that the duration, geographical area, line of business, or other terms of any Restrictive Covenant causes it to be unenforceable because it extends in a particular jurisdiction, the parties agree that the Restrictive Covenant automatically will be reformed for too long a period purposes of time or over too great a range of activities or enforcement in too broad a geographic that jurisdiction to the maximum duration, geographical area, it line of business or other terms that are valid and enforceable in that jurisdiction, and the court or arbitration panel shall be interpreted allowed and directed to extend only over revise such Restrictive Covenant to effectuate this intent. Reformation and revision of a Restrictive Covenant to validate its enforcement in any particular jurisdiction, however, will not affect the maximum period enforcement of time, range of activities or geographic area the Restrictive Covenant as to stated in any other jurisdiction in which it may is enforceable as stated. If a Restrictive Covenant is held by a court of competent jurisdiction or arbitration panel to be unenforceable, that provision will be deemed severable from the remaining provisions of this Agreement and will not affect the validity, interpretation, or effect of the other provisions of this Agreement or the application of the Restrictive Covenant to other circumstances in which it is enforceable. The invalidity of a Restrictive Covenant in any particular jurisdiction will not affect the validity or enforcement of the restriction in another jurisdiction where it is otherwise valid.
(cd) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in In the event of any the breach or threatened breach by a Restricted Person of a Restrictive Covenant, each Restricted Person agrees that the Buyer shall be entitled to injunctions, both preliminary and final, in a court of competent jurisdiction, enjoining and restraining such breach, breach or threatened breach and such remedies shall be in addition to such all other remedies which may be availableavailable to the Buyer either at law or in equity. Each Restricted Person acknowledges, stipulates, and agrees that a violation of a Restrictive Covenant shall diminish the value of the Acquired Business to the Buyer and cause it to suffer irreparable damages, including the inability of the Buyer to prove specific money damages, and the Restricted Person agrees that it or he is estopped from subsequently asserting in any action to enforce the provisions of a Restrictive Covenant that the Buyer has an adequate remedy at law and therefore is not entitled to injunctive relief. Without limiting other available remedies, the Company Buyer shall have be entitled to recover from a Restricted Person all profit, remuneration or other consideration that it or he gains from breaching any Restrictive Covenant, or portion thereof, and recover from the right Restricted Person compensation sufficient to seek specific performance make the Buyer whole for all Losses that the Buyer suffers as a result of the breach. Further, in order to provide the Buyer with the full benefit of the Restricted Period, if a Restricted Person breaches any Restrictive Covenant, the duration of such Restrictive Covenant shall be automatically extended as to that Restricted Person for the number of days that such breach continues (provided that if the breach is by any Seller Entity, the duration of such Restrictive Covenant shall also be extended for all of the Sellers).
(e) The Restrictive Covenants are intended by each party hereto to be, and injunctive relief in any court shall be construed as, agreements independent of competent jurisdiction, regardless each other and of any statement other agreement between the parties, and the existence of any claim or cause of action of a Restricted Person against the Buyer, whether predicated on this Agreement, another Transaction Document, his Employment Agreement or otherwise, shall not constitute a defense to the contrary hereinenforcement by the Buyer of the Restrictive Covenants.
Appears in 1 contract
Samples: Asset Purchase Agreement (Superior Uniform Group Inc)
Restrictive Covenants. (a) 11.1. During the term period that the Executive is employed by the Company and, unless the Executive terminates his employment for Good Reason or the Company terminates his employment other than for Cause, for a period of this Agreement and two (2) years after the Date of Termination, if said Date of Termination occurs prior to the expiration of the fifth anniversary of the date hereof, or for a period of one (1) year after the termination Date of Termination, if said Date of Termination occurs on or expiration thereofafter the fifth anniversary of the date hereof (hereinafter said two-year or one-year period, whichever becomes applicable, is referred to as the ORestrictive PeriodO), the Employee Executive agrees that the Executive will not (i) own or have any interest, directly or indirectly:
(i) , in, or act as an individual proprietorofficer, partner, stockholder, officerdirector, employee, directorconsultant, joint ventureragent or representative of, investor, lender, or assist in any way or in any other capacity whatsoever capacity, any Competitor (other than as such term is hereinafter defined); or (ii) directly or indirectly entice, induce or in any manner influence any person who is, or shall be, in the holder service of not more than the Company or any of its Affiliates (as such term is hereinafter defined) to leave such service for the purpose of owning or having any interest, directly or indirectly, in, or being employed by or associated with any Competitor. Notwithstanding the foregoing, the Executive may beneficially own up to one percent (1%) of any publicly traded equity securities of any entity which competes with the total outstanding stock Company or any of its Affiliates provided such ownership is for investment purposes only. As used in this Section 11, the term OCompetitorO shall include any corporation, partnership, sole proprietorship, joint venture, limited liability company, association or other business organization (x)Ethat offers at any time during the Restrictive Period any product or product category offered at any time during the Restrictive Period by the Company and which product or product category of the Company exceeds 10% of the gross revenues or 10% of the pre-tax earnings of the Company on a publicly held company)consolidated basis during the most recent fiscal year of the Company ending prior to the Date of Termination or during any other fiscal year of the Company ending during the Restrictive Period, engage and (y) that conducts business in any location within the United States of America. As used in this Section 11, the term OAffiliatesO shall include any entity in which the Company, or any entity which owns, directly or indirectly, a majority ownership interest in the Company, owns, directly or indirectly, at least a majority interest.
11.2. The Executive agrees that all customer, supplier and distributor lists, financial data, computer software programs, source codes, plans, contracts, agreements, literature, manuals, catalogs, brochures, books, records, maps, correspondence and other materials furnished to the Executive by the Company, or any of its Affiliates, or secured through the efforts of the Executive, relating to the business conducted by the Company or any of its Affiliates, are and shall remain the property of the Company, and/or its Affiliates, and the Executive agrees to deliver all such materials, including all copies thereof, to the Company upon the termination of the ExecutiveOs employment hereunder, or at any other time at the CompanyOs request.
11.3. The Executive agrees that the Executive will not at any time during or after the ExecutiveOs employment with the Company reveal, divulge or make known to any person, firm or corporation any trade secrets or confidential business information relating to the business of developingthe Company or any of its Affiliates, producing, marketing or selling services and will retain all such knowledge and information in trust in a fiduciary capacity for the sole benefit of the kind Company, its Affiliates and their respective successors and assigns.
11.4. In the event that any court shall finally hold that the time or type developed territory or being developed, produced, marketed or sold by any other provision of this Section 11 constitutes an unreasonable restriction against the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship withExecutive, the Company; or
(iii) solicitExecutive agrees that the provisions hereof shall not be rendered void but shall apply as to such time, divert territory and other extent as such court may judicially determine or take away, or attempt to divert or to take away, indicate constitutes a reasonable restriction under the business or patronage of circumstances involved. The Company and the Executive each request that any such court which holds that any of the clients, customers or accounts, or prospective clients, customers or accounts, provisions of this Section 11 constitutes an unreasonable restriction against the Company which were contacted, solicited or served by Executive make a determination of what would constitute a reasonable restriction under the Employee while employed by the Companycircumstances involved and to reform this Agreement accordingly.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to 11.5. Except as expressly provided in any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of other written agreement between the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach Executive, the provisions of Sections 6, 7 or 8 will cause this Section 11 shall survive the termination of the term of this Agreement and the termination of the ExecutiveOs employment with the Company substantial and irrevocable damage shall run to and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement inure to the contrary hereinbenefit of the Company, its Affiliates and their respective successors and assigns.
Appears in 1 contract
Restrictive Covenants. (a) During 6.1 In further consideration of, and as a further inducement to, the term of Purchaser entering into this Agreement and for a the purpose of assuring to the Purchaser the full benefit of the Business and goodwill of each of the Companies, each of the Vendors hereby covenants with and undertakes to the Purchaser (for the benefit of the Purchaser and as trustee for the benefit of each of the Companies and their respective successors in title to the Business) that:-
6.1.1 he shall not during the period commencing on Completion and expiring eighteen months after Completion either alone or jointly or in conjunction with or on behalf of one (1) year after or through the termination or expiration thereofagency of any person and whether as principal, the Employee will not directly or indirectly:
(i) as an individual proprietoragent, partner, stockholdershareholder, officer, employeeholding company, director, joint venturermanager, investoradviser, lenderconsultant, employee or in any other capacity whatsoever otherwise howsoever and whether directly or indirectly:-
(other than a) carry on or participate or assist or be engaged or concerned or interested (except as the holder or beneficial owner for investment purposes of not more than one percent (1%5(five)% in nominal value of any class of securities listed or dealt in on a generally recognised stock exchange) in any business in Europe currently carried on by any of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services Companies which competes with any part of the kind Business;
(b) in relation to or type developed in connection with any business which may in any way be in competition with any substantial part of the Business, procure or seek to procure orders from or do business with or procure directly or indirectly any other person to procure orders from or do business with any person who is at Completion or who has been at any time during the period of 1 (one) year immediately preceding Completion a customer of any of the Companies;
(c) interfere or seek to interfere or take such steps as may interfere with the continuance of supplies to any of the Companies (or the terms relating to such supplies) from any suppliers who are at Completion or who have been at any time during the period of eighteen months immediately preceding Completion supplying materials, components, products, goods or services to any of the Companies;
(d) solicit or entice away or offer employment to or endeavour to solicit or entice away or offer employment to any person being developed, produced, marketed or sold by then an employee of the Company while or any of the Employee Companies and who was employed at the date hereof or who hereafter becomes an employee, officer or manager of any of the Companies or any of them whether or not such person would commit a breach of contract by reason of leaving the Companyemployment, office or service of such company; or
(iie) hire, engage, recruit, solicit enter into partnership with or induce, appoint as a consultant or attempt to induce, adviser any current person who is at the date hereof or prospective who hereafter becomes an employee, officer, director, contractor manager or other business associate representative of or consultant or adviser to any of the Company to terminate their Companies;
1.1 shall not in any way be affected by the cessation of employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers Executives with any of the Group Companies.
6.1.2 he shall not at any time after Completion use or accounts, adopt or prospective clients, customers purport to use or accounts, adopt he name of any of the Companies for any purpose save in furtherance of his duties as an employee of the Company or do or say anything which were contacted, solicited or served by is harmful to the Employee while employed by reputation of the Company;
6.1.3 he shall not at any time after Completion save in furtherance of his duties as an employee of the Company either alone or jointly or in conjunction with or on behalf of or though the agency of any person and whether as principal, agent, partner, shareholder, director, manager, adviser, consultant, employee or otherwise howsoever and whether directly or indirectly use or procure the use, in connection with any business, of any name or any trade name used or owned by any of the Companies on Completion or any part or combination or abbreviations thereof likely to be confused therewith or any Intellectual Property owned or exclusively entitled to be used by any of the Companies; and
6.1.4 he shall not at any time after Completion disclose or cause to be disclosed to any person or use for his own purposes or for any purpose other than those of the Companies any Confidential Information or any information in relation to which any of the Companies is bound by an obligation of confidence to a third party and he shall use his best endeavours to prevent the publication or disclosure of any such information.
(iv) For 6.2 Each of the purposes Vendors hereby acknowledges and agrees with the Purchaser that each of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions undertakings contained in Sections 6clause 9.1 constitutes an entirely separate, 7 severable, independent and 8 separately enforceable restriction on each of the Vendors and that the duration, extent and application of the respective restrictions in clause 9.1 are no greater than is reasonable and necessary for the protection of the business and goodwill legitimate interests of the Company Purchaser and are considered each of the Companies but that if any such restriction shall be adjudged by the Employee any court or regulatory authority or agency of competent jurisdiction to be reasonable for void or unenforceable but would be valid if part of the wording thereof was deleted and/or the period thereof and/or the geographical area dealt with thereby was reduced, the said restriction shall apply within the jurisdiction of that court or regulatory authority or agency with such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which modifications as may be availablenecessary to make it valid, the Company shall have the right to seek specific performance effective and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary hereinenforceable.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Shares (Thermo Terratech Inc)
Restrictive Covenants. (a) During Section 11.1 While employed by any of the term of this Agreement Companies, and for a period of one (1) year after the termination of his or expiration thereofher employment with all of the Companies, the Employee Stockholder agrees that he or she will not, directly or indirectly, own, operate, join, control, engage in or participate in the ownership, management, operation or control of, or serve as a director or employee of, or consultant to, any business, firm or corporation which is competitive with any business conducted by any of the Applicable Companies (as defined below). The foregoing shall not prohibit the Stockholder from owning 1% or less of the outstanding shares of a publicly traded company. The foregoing restriction shall not apply to any period after employment in the event that the Stockholder's employment is terminated by the Companies without Cause.
Section 11.2 The Stockholder further agrees that while he or she is employed by any of the Companies and for a period of two years after the termination of his or her employment for any reason, the Stockholder will not, directly or indirectly:
(i) as an individual proprietorattempt in any manner to solicit from any client of the Applicable Companies, partnerexcept on behalf of the Companies, stockholderbusiness of the type performed by the Companies or to persuade any person, officerfirm or corporation which is a client of any of the Companies to cease to do business or to reduce the amount of business which any such client has customarily done or contemplates doing with the Companies, employee, director, joint venturer, investor, lender, whether or not the relationship between the Companies and such client was originally established in whole or in any other capacity whatsoever (other than as part through the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the CompanyStockholder's efforts; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, render any current or prospective employee, officer, director, contractor or other business associate services of the Company type rendered by the Applicable Companies to terminate their employment with, or otherwise cease their business relationship with, for any client of the CompanyApplicable Companies unless such services are rendered as an employee or consultant of the Companies; or
(iii) solicitattempt to persuade or otherwise induce any employee of the Companies to terminate his or her employment with the Companies, divert or take away, otherwise employ or attempt to divert employ or assist anyone else to take awayemploy any person who is then in the employ of the Companies, or who was in the employ of the Companies at any time during the then preceding one year period.
Section 11.3 As used in Sections 11.1 and 11.2, the business term "Applicable Companies" shall mean, at the time the Stockholder is employed by the Companies, each of the Companies then employing the Stockholder and/or for whom the Stockholder had provided services within the then immediately preceding one year period, and with respect to any period after the Stockholder's employment shall have terminated, each of the Companies which employed the Stockholder during the one year period immediately preceding the date of termination of Stockholder's employment, including any subsidiaries or patronage divisions of such Companies; and the term "client" of an Applicable Company shall mean (A) anyone who is a client of any of the clients, customers or accounts, or prospective clients, customers or accounts, Applicable Companies at the date of termination of the Company which were contactedStockholder's employment or, solicited or served by if the Employee while employed by Stockholder's employment shall not have terminated, at the Company.
time of the alleged prohibited conduct; (ivB) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee anyone who was employed by a client of any of the Company Applicable Companies at any time during the one year period immediately preceding the date of termination of the Stockholder's employment or, if the Stockholder's employment shall not have terminated, during the one year period immediately preceding the alleged prohibited conduct; and (C) any prospective clients to whom any of the Applicable Companies had made a formal presentation (or similar offering of services) within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range one year immediately preceding the date of activities or in too broad a geographic areasuch termination of employment or, it if the Stockholder's employment shall be interpreted to extend only over not have terminated, during the maximum one year period of time, range of activities or geographic area as to which it may be enforceableimmediately preceding the alleged prohibited conduct.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary herein.
Appears in 1 contract
Restrictive Covenants. (a) During Seller shall not during the term of this Agreement and for a period of one (1) year three years after the termination or expiration thereofClosing (the "Restricted Period"), the Employee will not directly or indirectly:
, own, manage, operate, join, control, finance or participate in the ownership, management, operation, control or financing of, or be connected as a partner, principal, agent, representative, consultant or otherwise with or use or permit its or his name to be used in connection with, any business or enterprise engaged directly or indirectly in competition with the Business at any time during the Restricted Period within any portion of the United States (the "Restricted Business"). It is recognized by the Seller that the Restricted Business is and is expected to continue to be conducted throughout the United States and that more narrow geographical limitations of any nature on this non-competition covenant (and the non-solicitation covenant set forth in Section 6.1(b)) are therefore not appropriate. The foregoing restriction shall not be construed to prohibit (i) the ownership by the Seller as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender, or in any other capacity whatsoever (other than as the holder a passive investment of not more than one five percent (1%) of any class of securities of any public or private corporation which is engaged in any of the total outstanding stock foregoing businesses, (ii) the provision of a publicly held company), engage services that are directly or indirectly in competition with the business of developing, producing, marketing or selling services Business that are ancillary to Contracts associated with any of the kind Seller's businesses (other than the Business) or type developed the provision of services that are directly or being developedindirectly in competition with the Business, producedwhich the aggregate of all such services under this clause (ii) represent less than $1,000,000 on an annual basis; provided that in any case, marketed the Seller shall not transact business with any existing customers of the Division that is not also a customer of any of its telemarketing, customer care or sold by interactive voice response businesses.
(b) Seller shall not during the Company while Restricted Period, directly or indirectly, (i) call on, solicit or contract with any Person who or which within the Employee was employed by past two years has been a customer with respect to the Company; or
Restricted Business, or (ii) hire, engage, recruit, solicit the employment or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of utilize the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage services of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary herein.person listed on Exhibit 6.1
Appears in 1 contract
Samples: Asset Purchase Agreement (Telespectrum Worldwide Inc)
Restrictive Covenants. (a) During 7.1 You hereby warrant that you are not an / do not currently represent any entity whose business is to promote the term sale of this the Products or products similar to the Products in Singapore and shall not contact or use the Company’s information or the Restricted Information in any way except for the performance of your obligations herein. You further undertake that during the course of the Agreement and these Terms and for a the period of one (1) year after commencing from the termination or expiration thereofof the same howsoever arising, the Employee will not you shall not, directly or indirectly, either alone or jointly or on behalf of any person, without the prior written consent of the Company:
(ia) attempt to, participate in or effectively solicit, serve, interfere with, or entice away from the Company / Product Owner any person, firm or company (or division or part thereof) at the date of such termination was a customer or client or supplier of or was in the habit of dealing with the Company / Product Owner, and with whom you had contact or about whom it became aware or informed about in the course of the Agreement and these Terms including any account of the Company / Product Owner or any account under solicitation by the Company / Product Owner;
(b) carry on or be engaged or interested in or assist any person carrying on any business directly competing in Singapore with the Company / Product Owner, whether or not as an individual proprietora shareholder, partner, stockholderdirector, officer, employee, directoragent, joint venturerconsultant, investor, lender, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion representative or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.;
(c) The take any steps that are preparatory to competing with the business of the Company / Product Owner;
(d) directly or indirectly procure or obtain or accept for your own benefit (or the benefit of any person other than the Company / Product Owner) any payment, rebate, discount, commission, voucher, gift or other benefit from any third party in respect of any business transacted or proposed to be transacted by or on behalf of the Company / Product Owner; and
(e) use Restricted Information or information received by you pursuant to the Agreement and these Terms and which you would not otherwise receive or any part of it to the competitive disadvantage of the Company / Product Owner.
7.2 You hereby expressly acknowledge that the restrictions contained in Sections 6this Clause 7 are reasonable and necessary to give adequate protection to the interests of the Company / Product Owner. Nevertheless, 7 and 8 are necessary it is recognised that restrictions of this nature may fail for technical reasons. Accordingly, if any of the above restrictions is, either by itself or taken with others, adjudged to be invalid as exceeding what is reasonable in all the circumstances for the protection of the business and goodwill interests of the Company / Product Owner, but would be valid and enforceable if any particular restriction or restrictions were deleted or limited in a particular manner, or if the period or area thereof were reduced or curtailed, then the said restriction shall apply with such deletions, restrictions, limitations, reductions, curtailments and modifications as may be necessary to make it valid and enforceable.
7.3 You also expressly acknowledge and agree that damages are considered by the Employee unlikely to be reasonable an adequate remedy for such purpose. The Employee agrees that any breach by you of Sections 6, any restriction in this Clause 7 or 8 will cause and the Company substantial / Product Owner shall be entitled to injunctive and irrevocable damage and therefore, other equitable relief or other relief as provided in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary hereinlaw.
Appears in 1 contract
Samples: Sales Contracts
Restrictive Covenants. (ai) During Each of Sellers covenants and agrees that, during the term period commencing at the Closing and continuing until the fourth (4th) anniversary of this Agreement the Closing Date (the “Restricted Period”), such Seller shall not (and for shall cause its Affiliates not to) do any of the following, or serve as a period partner, joint venturer, director, manager, trustee, officer, employee, independent contractor, agent or equityholder (excluding de minimis holdings in publicly traded companies) of one (1) year after any Person that does any of the termination or expiration thereoffollowing, the Employee will not in each case whether directly or indirectly:
(A) participate or engage in, or provide any financial or other assistance to any Person participating or engaging in, any business or enterprise that is similar to or competitive with the Business (as conducted historically and/or as of the Closing) anywhere in the United States, the United Kingdom, the European Union, Norway and Sweden (the “Restricted Territory”), provided that this clause (A) shall not apply (i) in the event that Sellers reacquire the Initial Purchased Shares from Buyer as a result of an individual proprietorEvent of Default (as defined in the Promissory Notes) or (ii) to any Seller maintaining ownership in the Company or serving in any capacity on behalf of, partneror taking any action at the direction of, stockholderthe Buyer or any of its Affiliates, pursuant to the Employment Agreements;
(B) induce or entice (or attempt to induce or entice) any customer, distributor, supplier, vendor, or any other Person having a business relationship with the Company or any Affiliate of the Company that then participates or engages in the Business (as conducted as of the Closing) to terminate or adversely modify its relationship with the Company or such Affiliate;
(C) solicit, contact, hire, engage, or enter into any other business relationship with (or attempt to do any of the foregoing) any Person who is then, or was within the twelve (12) months prior thereto, a director, manager, officer, employee, director, joint venturer, investor, lenderindependent contractor, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) agent of the total outstanding stock Company, or induce or entice (or attempt to induce or entice) any such Person to terminate or adversely modify its relationship with the Company, provided that nothing in this clause (D) shall prohibit the publishing of a publicly held company)general advertisements not specifically targeted to any directors, engage in the business managers, officers, employees, independent contractors, or agents of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(iiD) hiremake or endorse any disparaging, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment withderogatory, or otherwise cease their business relationship withnegative written or oral communication regarding the Business, the Buyer, the Company; or, or any of their respective Affiliates or Representatives.
(ii) The Restricted Period with respect to any Seller shall be tolled during (and shall be deemed to be automatically extended by) any period during which such Seller is in violation of any provision set forth in clause (i) above.
(iii) solicitEach Seller agrees that the Business is unique and irreparable damage would occur, divert and money damages would be inadequate, if any provision of clause (i) above were not performed in accordance with its terms and that the Buyer shall be entitled to injunctive relief and specific performance of the terms of clause (i) above, in addition to any other remedy to which it is entitled at law or take away, in equity. Each Seller irrevocably waives any requirement for the securing or attempt to divert or to take away, the business or patronage posting of any bond in connection with such remedy. Each Seller further agrees that the only permitted objection that it may raise in response to any Action for equitable relief is that it contests the existence of the clients, customers a breach or accounts, or prospective clients, customers or accounts, threatened breach of the Company which were contacted, solicited or served by the Employee while employed by the Companyclause (i) above.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction Each Seller agrees that all restrictions set forth in clause (i) above, including those relating to the duration of the Restricted Period and the scope of the Restricted Territory, are necessary and fundamental to the protection of the Company and its operation of the Business, are reasonable and valid, and constitute a material inducement for the Buyer to enter into this Section 6 is found by Agreement and each Ancillary Agreement and to consummate the Transaction. To the extent that any court of competent jurisdiction to be unenforceable because it extends for too long a period of time holds that the duration, scope, or over too great a range of activities area restrictions set forth in clause (i) above are unreasonable under circumstances then existing, the Parties agree that the maximum duration, scope, or in too broad a geographic area, it area reasonable under such circumstances shall be interpreted substituted for the stated duration, scope, or area and that such court shall be permitted, and this Agreement shall automatically be revised, to extend only over modify the restrictions set forth in clause (i) above to cover the maximum period of timeperiod, range of activities scope and area permitted by law or geographic area as to which it may be enforceableequity.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary herein.
Appears in 1 contract
Samples: Stock Purchase Agreement (Travelzoo)
Restrictive Covenants. (a) During the term of this Agreement Employee agrees that, from and for a period of one (1) year after the termination date hereof and continuing through the Restriction Period, Employee shall not, and shall cause its Affiliates to not, do any one or expiration thereofmore of the following, the Employee will not directly or indirectly:
(ia) engage, participate or prepare to engage or participate, anywhere in the Territory, as an individual proprietoremployee, partner, stockholdermember, officershareholder, independent contractor, employee, directorconsultant, joint venturer, investoragent, lender, lessor, advisor or (without limitation by the specific enumeration of the foregoing) otherwise in the Business;
(b) Solicit, attempt to Solicit, or assist anyone else to Solicit, any Person who is or has been a Customer to (i) cease doing business with any member of the Beacon Group, (ii) alter or limit its business relationship with any member of the Beacon Group, or (iii) purchase, other than from a member of the Beacon Group, any Competing Products;
(c) Solicit, attempt to Solicit, or assist anyone else to Solicit, any Person who is or has been a supplier, contractor, subcontractor, dealer, distributor, licensor, licensee, lessor or any other capacity whatsoever (other than as the holder of not more than one percent (1%) business relation of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing Beacon Group or selling services any subsidiary or predecessor of the kind Beacon Group within the twelve (12) months
(d) market, promote, sell, offer to sell, or type developed provide any Competing Products to any Customer, or being developedprepare to or assist anyone else to do so;
(e) Solicit, producedattempt to Solicit, marketed or sold by assist anyone else to Solicit any Business Associate to terminate, restrict or hinder his, her or its association with any member of the Company while the Employee was employed by the CompanyBeacon Group; or
(iif) hire, engage, recruit, solicit interview, Sxxxxxx, hire or induceotherwise retain the services of any Business Associate, whether on a full-time basis, part-time basis or attempt to induce, any current or prospective otherwise and whether as an employee, officer, director, contractor independent contractor, consultant, advisor, agent or other business associate in another capacity, or assist anyone else to do so if such action would restrict, hinder or terminate such Business Associate' s activities for and on behalf of any member of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the CompanyBeacon Group.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary herein.
Appears in 1 contract
Samples: Employment and Post Employment Exclusive Consulting Agreement (Beacon Roofing Supply Inc)
Restrictive Covenants. (a) During In consideration of the term of Transactions, and as a material inducement to the Buyer to enter into this Agreement and for a period of one (1) year after consummate the termination or expiration thereofTransactions, during the Restricted Period, the Employee will Sellers shall not, and shall cause their respective Affiliates not to, directly or indirectly:
, on its or their own behalf or on behalf of others (i) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lenderEngage in any Competing Business anywhere in the Restricted Territory, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing attempt to do so; or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hiremarket, engagepromote, recruitsell, offer to sell or provide, or solicit business, patronage or orders for, any Competing Products or Services within the Restricted Territory, or attempt to do so.
(b) In consideration of the Transactions, and as a material inducement to the Buyer to enter into this Agreement and consummate the Transactions, during the Restricted Period, the Sellers shall not, and shall cause their respective Affiliates not to, directly or indirectly, on its or their own behalf or on behalf of others: (i) hire or engage (whether as an employee, independent contractor or otherwise), or induce or assist any other Person to hire or engage (whether as an employee, independent contractor or otherwise), any Specified Employee (excluding Specified Employees who decline a transfer of employment under a mandatory labor consultation procedure as set forth in Section 6.05(a)(ii)); or (ii) solicit, encourage or induce, or attempt to solicit, encourage or induce, any current Specified Employee to leave his or prospective employeeher employment, officerengagement or position with the Buyer or its Affiliates; provided, directorthat nothing herein will prohibit general solicitations of employment and generalized employee searches by headhunter/search firms (in either case, contractor or other business associate not specifically directed at employees of the Company Buyer or its Affiliates).
(c) In consideration of the Transactions, and as a material inducement to terminate their employment withthe Buyer to enter into this Agreement and consummate the Transactions, or otherwise cease their business relationship withduring the Restricted Period, the Company; or
(iii) Sellers shall not, and shall cause their respective Affiliates not to, directly or indirectly, on its or their own behalf or on behalf of others, solicit, divert encourage or take awayinduce, or attempt to divert solicit, encourage or induce, any Person who was a customer, reseller or distributor of the Business as of, or within the twelve (12) months prior to, the Closing Date to (i) terminate his, her, their or its relationship with, or to take awayreduce the amount of business that he, she, they or it does with, the business Business (or patronage the Buyer and its Affiliates with respect to the Business), (including by actively targeting, marketing or promoting the Retained Products to such third parties (A) as a substitute or replacement for the products and services included within the Business and/or the Business Purchased Assets or (B) in the dimensional inspection or dimensional metrology markets or in markets and applications other than Additive Manufacturing); (ii) continue to be or become a customer, reseller or distributor of a Competing Business; or (iii) purchase, sell, resell, market, promote or distribute any of the clients, customers Competing Products or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the CompanyServices.
(d) Notwithstanding the foregoing, nothing in Section 6.12(a) will prevent or restrict the Sellers or any of their Affiliates from: (i) owning as a passive investment less than five percent (5%) of the outstanding equity interests of any publicly traded Person; (ii) engaging in any activity consented to in writing by the Buyer; (iii) providing services, or otherwise fulfilling their obligations, pursuant to the Transition Services Agreement or License Agreement; or (iv) For the purposes of these restrictions, the word “prospective” shall apply to Engaging in any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition business other than a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringCompeting Business.
(be) If any restriction The Sellers acknowledge the highly competitive nature of the Business and acknowledge and agree that the duration, geographical scope and subject matter of the restrictions set forth in this Section 6 6.12 are reasonable and necessary to protect the goodwill, business relationships and legitimate business interests of the Business, and are a material inducement to the Buyer and Hexagon Korea entering into and consummating the Transactions. The Sellers further acknowledge and agree that the Buyer and Hexagon Korea would not obtain the full benefit of the bargain set forth in this Agreement and the Korean Purchase Agreement if the Sellers or their Affiliates were to breach any of the provisions of this Section 6.12.
(f) It is found the intent of the Parties that each provision of this Section 6.12 be enforced to the fullest extent permissible under the Laws and public policies of each jurisdiction in which enforcement of this Section 6.12 is sought. The provisions of this Section 6.12 will be deemed severable and the invalidity or unenforceability of any provision will not affect the validity or enforceability of the other provisions hereof. If the scope of any provision contained in this Section 6.12 is ever determined by any a court of competent jurisdiction to exceed the time, geographic, product or service or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered, and hereby requested by the Parties, to reform such provision, and such provision shall be unenforceable because it extends for too long a deemed reformed, in such jurisdiction to the maximum time, geographic, product or service or other limitations permitted by applicable Law; provided, that if any such provision cannot be, or is not, so reformed, then such provision shall be ineffective in such jurisdiction to the minimum extent necessary to make the remainder of this Section 6.12 enforceable in such jurisdiction and the remainder of this Section 6.12 and the application of such provision to other Persons or circumstances will not be affected by such invalidity or unenforceability.
(g) The period of time in which the Sellers and their Affiliates are required to act, or over too great a range of activities or in too broad a geographic arearefrain from acting, it pursuant to this Section 6.12 shall be interpreted to extend only over tolled for so long as the maximum period of time, range of activities Sellers or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breachAffiliate is determined (by a final, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any non-appealable Governmental Order of a court of competent jurisdiction, regardless jurisdiction or by written agreement of the Sellers) to be in breach of any statement to the contrary hereinof their respective obligations hereunder.
Appears in 1 contract
Restrictive Covenants. (a) During In consideration of the term of this Agreement foregoing, the Employee agrees that he shall not:
A. during the Employment Period and for a period of one (1) year after two-years following the termination or expiration thereofof the Employment Period for any reason, the Employee will not directly or indirectly:
(i) , alone or as an individual proprietor, a partner, stockholder, officer, employee, director, joint venturer, investor, lender, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employeeventure, officer, director, member, employee, consultant, agent, independent contractor or other shareholder of, or lender to, any company or business, engage in any business associate in the aerospace industry directly or indirectly in competition with the business of TIMCO or its affiliates (TIMCO and its affiliates being referred to herein collectively as the “Companies”) as such business now exists or as it may exist at the time of termination; provided, however, that, the beneficial ownership of less than five percent (5%) of the Company shares of stock of any other corporation having a class of equity securities actively traded on a national securities exchange or over-the-counter market shall not be deemed, in and of itself, to terminate their employment withviolate the prohibitions of this Section;
B. for a period of two-years following the termination of the Employment Period, directly or otherwise cease their business relationship with, the Company; or
indirectly (iiii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage induce any Person which is a customer of any of the clientsCompanies, customers to patronize any business in the aerospace industry directly or accountsindirectly in competition with business conducted by any of the Companies; (ii) canvass, solicit or accept from any Person which is a customer of any of the Companies, any such competitive business; or (iii) request or advise any Person which is a customer or supplier of any of the Companies, to withdraw, curtail or cancel any such customer’s or supplier’s business with any of the Companies, or prospective clientsits or their successors;
C. for a period of two-years following the Employment Period, customers directly or accountsindirectly employ, of the Company which were contactedor knowingly permit any TIMCO or business directly or indirectly controlled by him, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictionsto employ, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee person who was employed by any of the Company Companies, at or within the prior three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities months, or in too broad a geographic areaany manner seek to induce any such person to leave his or her employment;
D. at any time following the date hereof, it directly or indirectly, in any way outside of his employment with any of the Companies utilize, disclose, copy, reproduce or retain in his possession any of the Companies’ proprietary rights or records, including, but not limited to, any of its customer lists. Further, so long as Employee is in compliance with the provisions of Sections 6 and 7 hereof, Employee shall be interpreted entitled to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary receive each month for the protection two-year restrictive covenant period referred to above the amounts that Employee would have received under Section 4(B) of this Agreement had Employee been terminated without Cause. Notwithstanding the business foregoing, if Employee has been was terminated for “Cause or has voluntarily resigned from his employment with TIMCO, this restrictive covenant and goodwill the provisions of Section 7 below shall apply notwithstanding the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach non-payment of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary hereinseverance hereunder.
Appears in 1 contract
Restrictive Covenants. (a) During The Stockholders covenant that, commencing on the term Closing Date and ending on the fifth anniversary of this Agreement and for a period of one the Closing Date (1) year after the termination or expiration thereof“Restricted Period”), the Employee will Stockholders shall not, and they shall cause their respective Affiliates not to, directly or indirectly:
(i) as an individual proprietor, partnerin any capacity, stockholder, officer, employee, director, joint venturer, investor, lenderengage in or have any direct or indirect ownership interest in, or permit such Person’s name to be used in connection with, any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company)business which is engaged, engage directly or indirectly, anywhere in North America in the business of developing, producingmarketing or selling any products or equipment or developing, marketing or selling providing any services of the kind which are competitive with products, services or type developed equipment, marketed, provided, sold or being developed, produced, marketed or sold under development by the Company while as of the Employee Closing Date (the “Restricted Business”).
(b) The Stockholders agree that during the Restricted Period, they shall not (and shall cause their respective Affiliates not to), (i) solicit the employment or engagement of services of any Person who is or was employed by at any time during the six-month period prior to such solicitation an Employee, contractor or consultant of the Company; or
, hire any such Person, or persuade, induce or attempt to persuade or induce any such Person to leave his, her or its employment or to refrain from providing services to the Company, the Purchaser or its Affiliates or (ii) hire, engage, recruit, solicit or induce, or in any manner attempt to solicit or induce, or cause or authorize any current other Person to solicit or prospective employeeinduce any Person to cease, officer, director, contractor diminish or other not commence doing business associate of with the Company to terminate their employment with, or otherwise cease their business relationship withCompany, the Company; or
(iii) solicit, divert Purchaser or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceableits Affiliates.
(c) From and after the Closing Date, the Stockholders shall not (and shall cause their respective Affiliates not to) disparage the Company, the Purchaser or its Affiliates to any Person.
(d) The Stockholders acknowledge that the restrictions contained in Sections 6, 7 this Section 6.17 are reasonable and 8 are necessary for to protect the protection legitimate interests of the business Purchaser and goodwill constitute a material inducement to the Purchaser to enter into this Agreement and consummate the transactions contemplated by this Agreement. The Stockholders acknowledge that any violation of this Section 6.17 will result in irreparable injury to the Purchaser and agree that the Purchaser shall be entitled to preliminary and permanent injunctive relief, without the necessity of proving actual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of this Section 6.17, which rights shall be cumulative and in addition to any other rights or remedies to which the Purchaser may be entitled. Without limiting the generality of the Company foregoing, the Restricted Period shall be extended for an additional period equal to any period during which any Stockholder is in breach of its obligations under this Section 6.17.
(e) In the event that any covenant contained in this Section 6.17 should ever be adjudicated to exceed the time, geographic, product or service or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and are considered such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service or other limitations permitted by the Employee to be reasonable for such purposeapplicable Law. The Employee agrees that any breach of Sections 6, 7 covenants contained in this Section 6.17 and each provision thereof are severable and distinct covenants and provisions. The invalidity or 8 will cause the Company substantial and irrevocable damage and therefore, in the event unenforceability of any such breachcovenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, in addition to and any such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief invalidity or unenforceability in any court of competent jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction, regardless of any statement to the contrary herein.
Appears in 1 contract
Samples: Stock Purchase Agreement (InfuSystem Holdings, Inc)
Restrictive Covenants. (a) During Both during the term of this Agreement Employment and for a period of one (1) year after during the termination or expiration thereofRestricted Period, the Employee Executive will not not, without the prior written consent of the Board, whether by himself, through his employees or agents and whether on his own behalf or on behalf of any person, directly or indirectly:
(ia) so as an individual proprietorto compete with the Company, partnersolicit business from or canvas or approach any Customer or Prospective Customer in respect of Restricted Products or Restricted Services;
(b) so as to compete with the Company, stockholderaccept orders from, officeract for or have any business dealings with, employeeany Customer or Prospective Customer in respect of Restricted Products or Restricted Services;
(c) within the Restricted Area, directorbe employed, joint venturer, investor, lender, engaged or interested in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock or provide Confidential Information to that part of a publicly held company)business or person which is involved in Restricted Products or Restricted Services, if the business or person is or seeks to be in competition with the Company. For the purposes of this sub-clause, acts done by the Executive outside the Restricted Area shall nonetheless be deemed to be done within the Restricted Area where their primary purpose is to distribute, sell, supply or otherwise deal with Restricted Products or Restricted Services in the Restricted Area;
(d) solicit or induce or endeavour to solicit or induce any person who was a Restricted Employee (and with whom the Executive had dealings during the Relevant Period) to cease working for or providing services to the Company, whether or not any such person would thereby commit a breach of contract;
(e) employ or otherwise engage any Restricted Employee in the business of developingRestricted Products or Restricted Services if that business is, producingor seeks to be, marketing in competition with the Company; 299021913 v1
(f) solicit or selling services of the kind induce or type developed endeavour to solicit or being developed, produced, marketed induce or sold by approach any Supplier to cease to deal with the Company while the Employee was employed by and shall not interfere in any way with any relationship between a Supplier and the Company; or
(iig) hireso as to compete with the Company or reduce the Company’s business, engagesolicit, recruit, solicit or inducedeal with, or attempt to induce, solicit or deal with any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with whom it has entered into a collaboration agreement (or with whom it is in discussions to enter into a collaboration agreement), and with which entity the Executive has had business dealings during the Relevant Period or about which the Company Executive has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringConfidential Information.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary herein.
Appears in 1 contract
Restrictive Covenants. (a) During the term of this Agreement and for For a period of one three (13) year years from and after the termination Closing Date, except with respect to any work that may be performed on behalf of the Acquired Business as an employee or expiration thereofagent of the Acquired Business, the Employee will Seller agrees that it shall not, and shall cause its Affiliates not to, directly or indirectly:indirectly contact, solicit, market to, sell any product to, or perform any service for (x) any Person that is, or during the preceding twelve (12) months was, a customer of the Acquired Business (each, a “Company Customer”) or (y) any Affiliate of a Company Customer, in each case in relation to a marijuana dispensary business (a “Competing Business”). Notwithstanding the foregoing, this Section 5.4(a) expressly does not apply to any contract, agreement, document, or arrangement that currently exists as of the Effective Date between the Seller and/or its Affiliates and any Company Customer or Competing Business.
(ib) as an individual proprietorFor a period of three (3) years from and after the Closing Date, partnerSeller agrees that, stockholderwithout the consent of Purchaser, officerit shall not, employeeand shall cause its Affiliates not to, directordirectly or indirectly hire, joint venturer, investor, lendersolicit to (or assist or encourage others to) hire, or in any other capacity whatsoever (other than as way interfere with the holder employment relationship of not more than one percent (1%) any individual who is an employee or independent contractor of the total outstanding stock of a publicly held company), engage Company in connection with the business of developing, producing, marketing Acquired Business or selling services of the kind who was employed or type developed or being developed, produced, marketed or sold engaged by the Company while in connection with the Employee was employed Acquired Business within the twelve (12) months prior to the Closing Date. Notwithstanding the foregoing, Seller shall not be precluded from engaging in general solicitations or advertising for personnel, including advertisements and searches conducted by a headhunter agency; provided that such solicitation, advertising or searches are not directed in any way at the Company; or
(ii) hire, engage, recruit, solicit employees or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate independent contractors of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(ivc) For From and after the purposes of these restrictionsClosing Date, the word “prospective” Parties agree that neither shall, and each Party shall apply cause their respective Affiliates not to, knowingly make, publish or communicate to any individual Person any defamatory or entity with which the Company has had substantive contact within the twelve month period prior to disparaging remarks, comments or statements concerning, any potential hiringother Party or any of their respective Affiliates, solicitation, recruiting, diversion employees or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringcustomers.
(bd) Seller acknowledges and agrees that the scope of the restrictive covenants set forth in clauses (a) through (d) above, including the scope of Competing Business and the Territory, are reasonably tailored, and not broader than necessary, to protect the legitimate business interests of Purchaser, and do not prevent or preclude Seller from earning a suitable livelihood.
(e) If any restriction set forth in term or provision of this Section 6 is found 5.4 shall be determined by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time invalid, illegal or over too great a range of activities unenforceable, in whole or in too broad a geographic areapart, it and such determination shall become final, such provision or portion shall be interpreted deemed to extend be severed or limited, but only over to the maximum period extent required to render the remaining terms and provisions of time, range of activities or geographic area this Section 5.4 enforceable. This Section 5.4 as so amended shall be enforced so as to which it may be enforceablegive effect to the intention of the parties insofar as that is possible. In addition, the parties hereby expressly empower a court of competent jurisdiction to modify any term or provision of this Section 5.4 to the extent necessary to comply with any Applicable Law and to enforce this Section 5.4 as modified.
(cf) The restrictions contained in Sections 6, 7 Seller acknowledges and 8 are necessary agrees that money damages would not be an adequate remedy for the protection breach of the business and goodwill provisions of the Company and are considered by the Employee to be reasonable for such purposethis Section 5.4. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in In the event of an actual or threatened breach by Seller of any such breachof the provisions of this Section 5.4, Purchaser, in addition to such any other remedies which available to it, may be available, the Company shall have the right to seek obtain from a court of competent jurisdiction specific performance and and/or injunctive relief in order to enforce, or prevent any court breach of, the provisions of competent jurisdiction, regardless this Section 5.4 without the requirement of posting any statement to the contrary hereinbond or other indemnity.
Appears in 1 contract
Restrictive Covenants. (a) During the term of this Agreement and for a period of one (1) year after the termination or expiration thereofConsultancy Term, the Employee will not Consultant shall not, directly or indirectly:
, own any interest in, participate or engage in, assist, render any services (iincluding advisory services) to, become associated with, work for, serve (in any capacity whatsoever, including, but not limited to, as an individual proprietoremployee, partnerconsultant, stockholderadvisor, representative, agent, independent contractor, officer or director) or otherwise become in any way or manner connected with the ownership, management, operation, or control of, any person, business, firm, corporation, partnership, trust or other business or governmental entity (each, a “Competing Business”) that, anywhere in the United States, primarily engages in, or assists others in engaging in or conducting, any business that deals, directly or indirectly, in products or services similar in nature to or directly competitive with the products and/or services sold, marketed, manufactured, distributed and/or provided by the Company in conducting the Business as of the date of this Agreement; provided, however, that the restrictions set forth in this paragraph 5(a) shall not be deemed to exclude Consultant or Xxxxxx from acting as director, officer, employee, directorconsultant, joint venturer, investor, lender, or in any other capacity whatsoever (other than as agent and/or advisor of an entity for the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate benefit of the Company with the consent of the Board; and further, provided, however, that the restrictions set forth in this paragraph 5(a) shall not be deemed to terminate their employment withprohibit Consultant and/or Xxxxxx from owning or acquiring securities issued by any entity whose securities are listed on a national securities exchange or are quoted on the OTC Bulletin Board, provided that Executive at no time owns, directly or otherwise cease their business relationship withindirectly, the Company; or
(iii) solicitbeneficially or otherwise, divert 3% or take away, or attempt to divert or to take away, the business or patronage more of any class of the clients, customers any such entity’s outstanding capital stock or accounts, or prospective clients, customers or accounts, other form of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringequity ownership.
(b) If During the Consultancy Term, Consultant shall not knowingly provide or solicit to provide to any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill customer of the Company any goods or services that are similar in nature to [or competitive with] those goods and are considered services sold and/or provided by the Employee to be reasonable for such purposeCompany in conducting the Business as of the date of this Agreement. The Employee agrees that any breach For the purposes of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be availablethis paragraph 5(b), the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary herein.term
Appears in 1 contract
Restrictive Covenants. (a) During 8.1 The Company and Executive acknowledge and agree that Executive’s services are of a special and unusual character which have a unique value to the term Company, the loss of which cannot be adequately compensated by damages in an action at law and if used in competition with the Company could cause serious harm to the Company. Further, Executive and the Company also recognize that an important part of Executive's duties will be to develop good will for the Company through his personal contact with customers, agents and others having business relationships with the Company, and that there is a danger that this Agreement good will, a proprietary asset of the Company, may follow Executive if and when his relationship with the Company is terminated. Accordingly, Executive covenants that for a period of one (1) year eighteen months after Executive ceases to be employed by the termination or expiration thereofCompany for any reason whatsoever, Executive shall not, within the Employee will not United States of America, without the prior written consent of the Company, directly or indirectly:
(ia) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender, Offer to render any services or in solicit the rendition of any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold which were rendered by the Company while during the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate two year period immediately preceding such cessation of Executive’s employment with the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, accounts of the Company which who were contacted, solicited such at any time during such two year period to or served by for the Employee while employed by benefit or account of Executive or to or for the Company.
(iv) For the purposes benefit or account of these restrictions, the word “prospective” shall apply to any individual other person or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringentity.
(b) If Render or attempt to render any restriction set forth in this Section 6 is found services which were rendered by the Company during the two year period immediately preceding such cessation of Executive’s employment with the Company to any court clients, customers or accounts of competent jurisdiction the Company who were such at any time during such two year period to be unenforceable because it extends or for too long a period the benefit or account of time Executive or over too great a range to or for the benefit or account of activities any other person or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceableentity.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary Solicit for employment or employ to or for the protection benefit or account of Executive or to or for the benefit or account of any other person or entity any employee of the business and goodwill Company, nor shall Executive urge, directly or indirectly, any client or referrer of clients, customers, or accounts of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6discontinue, 7 in whole or 8 will cause in part, business with the Company substantial and irrevocable damage and thereforeor not to do business with the Company. For purposes of this Section 8.1(c) of this Agreement, in the event term “referrer of clients” shall mean any such breachperson or entity who or which referred a client, in addition customer or account to the Company at any time prior to such other remedies which may be available, cessation of Executive's employment with the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary hereinCompany.
Appears in 1 contract
Restrictive Covenants. (a) During the term of this Agreement and for For a period of one (1) year after the termination or expiration thereof, the Employee will not directly or indirectly:
(i) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding years from and after the Closing Date (the “Restricted Period”), no Founder or the individuals set forth on Schedule 6.2(a) (the “Specified Employes”) shall, and each Founder and Specified Employee shall cause its respective Affiliates not to, directly or indirectly (i) cause, solicit, induce, facilitate or encourage any potential solicitation employee or hiringindependent contractor of the Company or any of its respective Affiliates to terminate such employment or contractor relationship or hire, employ or otherwise engage any such individual; or (ii) cause, induce, facilitate or encourage any client, customer, vendor or supplier of Purchaser or the Company (including any existing or former client, vendor, customer or supplier of the Company and any Person that becomes a client, customer, vendor or supplier of the Company after the date hereof) or any other Person who has a business relationship with Purchaser or the Company, to terminate or modify any such relationship.
(b) If During the Restricted Period, no Founder or Specified Employee shall, and each Founder and Specified Employee shall cause its respective Affiliates not to, without the prior written consent of Purchaser, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business; (ii) have an interest in any restriction set forth Person that engages directly or indirectly in the Restricted Business in any capacity, including as a partner, shareholder, member, lender, employee, principal, agent, trustee or consultant; or (iii) interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between Purchaser or the Company and any client, customer, vendor or supplier of Purchaser or the Company. Notwithstanding the foregoing, each Founder and Specified Employee may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if such Founder or Specified Employee is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own 1% or more of any class of securities of such Person.
(c) From and after the Closing, no Seller, nor any of its respective Representatives or Affiliates, will make, or cause to be made, any statement (whether oral or written) that knowingly disparages the reputation or business of any of Purchaser, the Company or any of their respective Affiliates or business partners; provided, however, that nothing in this Section 6 is found by 6.2(c) shall restrict any party hereto from enforcing its rights hereunder or from testifying truthfully in any Action.
(d) The covenants and undertakings contained in this Section 6.2 relate to matters which are of a special, unique and extraordinary character and a violation of any of the terms of this Section 6.2 will cause irreparable injury to Purchaser and/or the Company, the amount of which may be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at Law for any breach of this Section 6.2 will be inadequate. Therefore, Purchaser and the Company will be entitled to a temporary and permanent injunction, restraining order or other equitable relief from any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, breach of this Section 6.2 without the necessity of proving actual damage. The rights and remedies provided by this Section 6.2 are cumulative and in addition to such any other rights and remedies which may be available, the Company shall or Purchaser may have hereunder or at Law or in equity. The Sellers acknowledge that the right restrictions contained in this Section 6.2 are reasonable and necessary to seek specific performance protect the legitimate interests of the Company and injunctive relief Purchaser and constitute a material inducement to the Company and Purchaser to enter into this Agreement and consummate the Transactions. In the event that any covenant contained in this Section 6.2 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any court of competent jurisdiction, regardless then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 6.2 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any statement to such covenant or provision as written shall not invalidate or render unenforceable the contrary hereinremaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Restrictive Covenants. (a) During the term of this Agreement and for For a period of one five (15) year years from and after the termination or expiration thereofClosing Date, the Employee will each Seller shall not (and shall cause such Seller’s Affiliates not to), directly or indirectly:
, anywhere in the world, either for himself, herself or itself or through any other Person, have an ownership interest in, manage, participate, operate, control, permit such Person’s name to be used by, perform services for or otherwise become involved in (whether as an officer, director, manager, employee, investor, partner, proprietor, equity holder, member, trustee, consultant, agent, representative, broker, promoter or otherwise), any Person engaging or contemplating engaging in a Competing Business. Notwithstanding the foregoing, (i) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender, nothing shall prohibit a Person or in any other capacity whatsoever (other than as the holder of such Person’s Affiliates from having a passive ownership interest of not more than one two percent (12%) of the total outstanding stock any publicly-traded entity, so long as neither such Person nor any of a publicly held company), engage such Person’s Affiliates participates in any way in the business management, operation or control of developingsuch publicly-traded entity, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
and (ii) nothing shall prohibit a Person from engaging in any activities or performing any services on behalf of any Transferred Company or any of its Subsidiaries or Affiliates.
(b) For a period of five (5) years from and after the Closing Date, each Seller shall not (and shall cause such Seller’s Affiliates not to), directly or indirectly, either for himself, herself or itself or through any other Person, (i) hire, engage, recruit, solicit or induce, or attempt to hire, solicit or induce, any current employee of any Transferred Company or prospective employeeany of its Subsidiaries or Affiliates (in each case, officer, director, contractor or other business associate as of the Company Closing Date and during such period) to terminate their employment withleave the employ of such Person, or otherwise cease their business in any way interfere with the relationship with, the Company; or
between such employee and such Person or (iiiii) solicit, divert or take awayinduce, or attempt to divert induce, any customer or to take away, the business or patronage vendor of any Transferred Company or its Subsidiaries to cease doing or decrease such Person’s business with any Transferred Company or any of the clients, customers its Subsidiaries or accountsAffiliates, or prospective clients, customers in any way interfere with the relationship between any such Person and any Transferred Company or accounts, any of the Company which were contacted, solicited its Subsidiaries or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceableAffiliates.
(c) The restrictions contained in Sections 6For a period of five (5) years from and after the Closing Date, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee each Seller agrees that such Seller shall not make any breach negative, derogatory or disparaging public statement or communication regarding Buyers, any Transferred Company, their Subsidiaries or Affiliates or any of Sections 6their respective officers, 7 directors, managers or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary hereinemployees.
Appears in 1 contract
Restrictive Covenants. (a) During the term of this Agreement and for a period of one (1) year after the termination or expiration thereof, the Employee will not directly or indirectly:
(i) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) 9.1 For the purposes of these restrictions, assuring to the word “prospective” shall apply to any individual or entity with which Purchaser the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection full benefit of the business and goodwill of the Company, Seller A (in this capacity, the "Covenantor") undertakes by way of further consideration for the obligations of the Purchaser under this Agreement that it will not:
(a) During 24 months from the Completion Date, other than the information covered under Clauses 16.2 and 16.3, after Completion disclose to any person, or himself/itself use for any purpose, and shall use his/its best endeavours to prevent the publication or disclosure of, any information concerning the business, accounts or finances of the Company, or any of its clients’ or customers’ transactions or affairs, which may, or may have, come to his/its knowledge;
(b) in any Relevant Capacity at any time during 12 months from the Completion Date: SHARE PURCHASE AGREEMENT 15
(i) directly or indirectly solicit, interfere with, employ or endeavour to entice away from the Company with a view to competing with the Company any person who, to his/its knowledge, is now, or has during the 12 months preceding the date of this Agreement been, a client, customer, supplier or employee of, or in the habit of dealing with, the Company, provided that communications to an existing client, customer, supplier or employee of Solaire Resort & Casino who may happen to be a client, customer, supplier or former employee of the Company shall not be covered by this restriction; or
(ii) directly or indirectly carry on or be engaged or concerned or interested in any business in Korea similar to any business carried on by the Company at the date of this Agreement in which the Company shall have been actively involved in the year prior to Completion, provided that this restriction shall not apply to any development or transaction that Seller A may enter into in connection with its Muui and Silmi Islands properties; or
(iii) at any time use the name or trading style of the Company, or any trademarks or logos or device similar in appearance to any trademarks, in Korea or any other part of the world, or represent itself as carrying on or continuing or being connected with the Company or its business for any purpose whatsoever.
9.2 Nothing in this Clause 9 shall apply to:
(a) the continuing involvement or any involvement by the Covenantor in any business in which it are on the date of this Agreement directly or indirectly interested and which is disclosed to the Purchaser; or
(b) the holding by the Covenantor of any securities of the Company; or
(c) the use or disclosure of any information in the public domain (otherwise than in consequence of any breach by the Covenantor or any provisions of this Agreement or its management or service agreement with the Purchaser from time to time).
9.3 While the restrictions contained in this Clause 9 are considered by the Employee 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 legitimate interests of the Purchaser but would be adjudged reasonable if any particular restriction or restrictions were deleted or if any part or parts of the wording thereof were deleted, restricted or limited in a particular manner then the restriction contained in this Clause 9 shall apply with such purpose. The Employee agrees that any breach of Sections 6deletion, 7 restriction or 8 will cause limitation as the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which case may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary hereinbe.
Appears in 1 contract
Samples: Share Purchase Agreement (Iao Kun Group Holding Co LTD)
Restrictive Covenants. (a) During the term of this Agreement and for For a period of one five (15) year after years immediately following the termination or expiration thereofClosing Date, the Employee will Seller Parties and their Affiliates shall not engage in any business that competes with the Business or in any business whose products or services compete, in whole or in part, with the current products or services of the Company, anywhere in the world, either directly or indirectly:
(i) , whether as an individual proprietora manager, owner, operator, partner, stockholdermember, officershareholder, lender, principal, employee, director, joint venturerofficer, investorconsultant, lenderagent or otherwise; provided, that this Section 5.6 shall not prohibit the Seller Parties from investing or in any other capacity whatsoever (other than as the holder of holding not more than one percent (1%) of the total outstanding stock Capital Stock of any Person whose equity securities are listed on a publicly held company), engage national securities exchange so long as the Seller Parties and their Affiliates have no active participation in the management of the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; orsuch Person.
(iib) For a period of five (5) years immediately following the Closing Date, the Seller Parties shall not (and shall cause their Affiliates not to), directly or indirectly, either for themselves or through any other Person, (i) hire, engage, recruit, solicit or induce, or attempt to hire, solicit or induce, any current or prospective employee, officer, director, consultant or independent contractor or other business associate of the Company (in each case as of the Closing Date and during such period) to terminate their employment withleave the employ of, or otherwise cease their business relationship withproviding services to, the Company; or
, or in any way interfere with the relationship between such employee, consultant or independent contractor and the Company or (iiiii) solicitcall on, divert solicit or take awayservice any current or former (within the past one (1) year period) customer, supplier or similar business relation of the Company for the provision of services competitive with those offered by the Company as of the Closing Date and the twelve (12) month period prior to the Closing Date, or induce or attempt to divert induce such Person to cease doing or to take away, decrease its business with the business or patronage of any of the clients, customers or accountsCompany, or prospective clientsin any way interfere with the relationship between any such customer, customers supplier or accounts, similar business relation of the Company which were contacted, solicited or served by the Employee while employed by and the Company.
(ivc) For a period of two (2) years immediately following the purposes of these restrictionsClosing Date, the word “prospective” Seller Parties shall apply to not (and shall cause its Affiliates not to) make any individual negative, derogatory or entity with which disparaging statement or communication regarding Purchaser, the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringtheir respective employees.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(cd) The restrictions contained Seller Parties acknowledge that in Sections 6view of the nature of the Business and the business objectives of the Purchaser in consummating the transactions contemplated by this Agreement, 7 the foregoing territorial and 8 time limitations are necessary reasonable and properly required for the adequate protection of the business Purchaser, and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of that any such breach, in addition territorial or time limitation is deemed to such other remedies which may be available, the Company shall have the right to seek specific performance unreasonable and injunctive relief in any is then reduced by a court of competent jurisdiction, regardless then, as reduced, the territorial and/or time limitation shall be enforced.
(e) The Seller Parties further acknowledge that (i) the foregoing territorial and time restrictions are essential to protect the goodwill and going concern value of the Business, (ii) the goodwill and going concern value of the Business comprise an essential portion of the consideration received by the Purchaser under this Agreement for which the Purchaser is paying the Purchase Price and (iii) the Purchaser would not enter into this Agreement or consummate the transactions contemplated by this Agreement without the Seller Party's agreement to the provisions of this Section 5.6. The Seller Parties acknowledge that the remedy at law for any breach by the Seller Parties of the covenants contained in this Section 5.6 will be inadequate and that the Purchaser will be entitled to seek injunctive relief without being required to prove actual damages or post bond. The Seller Parties and the Purchaser acknowledge that each covenant contained in this Section 5.6 constitutes an independent and severable covenant and if any or all of the provisions of this Section 5.6 are held to be unenforceable for any reason whatsoever, it will not in any way invalidate or affect the remainder of this Agreement, which will remain in full force and effect. On any dispute under this Section 5.6, the prevailing party, as determined by a court of competent jurisdiction based on the merits of each party's position, will be entitled to recover reasonable attorneys' fees and court costs from the nonprevailing party.
(f) The Purchaser and the Seller Parties acknowledge that the intent of the foregoing territorial and time restrictions is not compensatory in nature but rather is to protect the Purchaser's significant investment in the acquired business goodwill of the Company. The Purchaser and the Seller Parties further acknowledge that, despite any allocation of the Purchase Price to the contrary, no separate consideration is being paid for the foregoing territorial and time restrictions, but rather the consideration for the foregoing territorial and time restrictions is an inseparable part of the overall Purchase Price being paid for the Company.
(g) Within five (5) Business Days after receipt of a payment from a Government Entity related to the ERC, Purchaser shall pay to Seller or Seller's Affiliate as designed by Seller the amount received by the Company from such Government Entity, net of any statement to fees and costs incurred by the contrary herein.Company in collecting such amount..
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Evome Medical Technologies Inc.)
Restrictive Covenants. (a) During the term of this Agreement and for a period of one (1) year after the termination or expiration thereof, the Employee You agree that you will not at any time during the Employment Period (and with respect to (iii) below, at all times thereafter, directly or indirectly:
: (i) own, manage, operate, join, control or participate in the ownership, management, operation or control of, or be connected as an individual proprietor, partner, stockholdera director, officer, employee, director, joint venturer, investor, lenderor lender with, or be compensated by, any entity or business (including a sole proprietorship) that (x) is an NASD registered broker-dealer, or (y) except as permitted pursuant to Section 4 (b), that provides financial advisory services, provides investment banking advice or engages in capital raising; provided that up to a 4.9% interest in a publicly traded entity shall be permitted, (ii) employ or otherwise engage, or offer to employ or otherwise engage, or solicit, entice or induce for himself or any other capacity whatsoever person, entity or corporation, the services or employment of any person who is, or during the three months prior thereto has been, an employee of, or independent contractor, consultant or agent, in each case, devoting a majority of its business time to, the Company or any of its affiliates (other than your personal secretary), and (iii) use or disclose, or authorize any other person or entity to use or disclose, any information of a confidential nature (i.e., strategic plans, specifications for existing or future technology) other than as necessary to further the business objectives of the Company in accordance with the terms of your engagement hereunder; provided that the restrictions contained in this Section 4(a) shall not apply to (x) information that becomes publicly known (other than as a result of your breach of this restriction) and (y) information, the holder disclosure of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or inducewhich is reasonably necessary to defend yourself, or attempt assert your rights, in connection with any proceeding to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwiseits affiliates is directly or indirectly a party. In addition a “current” employee shall include any employee who was employed by You understand that your services for the Company within will be of a special and unique nature, and that the three (3) months preceding any potential solicitation breach or hiring.
(b) If any restriction set forth in threatened breach of the provisions of this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c4(a) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will would cause the Company substantial and irrevocable damage and therefore, irreparable harm which could not be adequately compensated for in damages by an action at law. In the event of any such breacha breach or threatened breach by you of this Section 4(a), in addition to such all other remedies which may be availableavailable to the Company at law or in equity, the Company shall have the right will be entitled to seek specific performance and injunctive relief a temporary or permanent injunction or injunctions, or temporary restraining orders or orders to prevent breaches hereof, in each case, without the need to post any court of competent jurisdiction, regardless of any statement security or bond.
D. Section 4(e) is amended in its entirety to the contrary herein.read as follows:
Appears in 1 contract
Samples: Employment Agreement (Soundview Technology Group Inc)
Restrictive Covenants. (a) During the term period beginning on the Closing Date and ending on the fifth anniversary of the Closing Date (the “Restricted Period”), each Member covenants and agrees not to, and shall cause his respective Affiliates not to, directly or indirectly and anywhere in the Restricted Territory, conduct, manage, operate, engage in, or have an ownership interest in any business or enterprise engaged in (i) the Business, or (ii) any activities that are otherwise similar to, or competitive with, the Business. Notwithstanding the provisions of this Agreement and for a period of one (1) year after the termination or expiration thereofSection 5.2(a), the Employee will beneficial ownership of less than five percent of the shares of stock or other equity interests of any corporation or other entity having a class of equity securities actively traded on a national securities exchange or over-the-counter market and not formed for the purpose of circumventing this Agreement shall not be deemed to violate the provisions of this Section 5.2(a).
(b) During the Restricted Period, each Member covenants and agrees not to, and shall cause his respective Affiliates not to, directly or indirectly:
(i) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruitcall-on, solicit or induce, or attempt to solicit or induce, any current Person which is or was a past, present or prospective employee, officer, director, contractor customer or other business associate relation of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any as of the clients, customers Closing Date for the provision of products or accounts, or prospective clients, customers or accounts, of services related to the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities Business or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceableany other manner that would otherwise interfere with business relationships between Parent and such customers and other business relations.
(c) The restrictions contained in Sections 6During the Restricted Period, 7 each Member covenants and 8 are necessary for agrees not to, and shall cause his respective Affiliates not to, directly or indirectly, call-on, solicit or induce, or attempt to solicit or induce, any Person who was employed or engaged as an independent contractor by the protection Company on or at any time before the Closing Date, to leave the employ or engagement of the Company, the Surviving Company or their Affiliates (including Parent) for any reason whatsoever, nor shall any Member offer or provide employment (whether such employment is for a Member or any other Person), either on a full-time basis or part-time or consulting basis, to any such Person.
(d) Members acknowledge and agree that the provisions of this Section 5.2 are reasonable and necessary to protect the legitimate business interests of Parent and goodwill its acquisition of the Company and are considered by Company. None of the Employee to be reasonable Members shall contest that Xxxxxx’s remedies at law for such purpose. The Employee agrees that any breach or threat of Sections 6breach by any Member or any of their respective Affiliates of the provisions of this Section 5.2 may be inadequate, 7 and that Parent shall be entitled to an injunction or 8 will cause injunctions to prevent breaches of the Company substantial provisions of this Section 5.2 and irrevocable damage to enforce specifically such terms and therefore, in the event of any such breachprovisions, in addition to such any other remedies remedy to which Parent may be availableentitled at law or equity. The restrictive covenants contained in this Section 5.2 are covenants independent of any other provision of this Agreement or any other agreement between the Parties hereunder and the existence of any claim which any Member may allege against Parent under any other provision of the Agreement or any other agreement will not prevent the enforcement of these covenants.
(e) If any of the provisions contained in this Section 5.2 shall for any reason be held to be excessively broad as to duration, scope, activity or subject, then such provision shall be construed by limiting and reducing it, so as to be valid and enforceable to the Company shall have extent compatible with the right to seek specific performance and injunctive relief in any applicable Law or the determination by a court of competent jurisdiction, regardless of any statement to the contrary herein.
Appears in 1 contract
Samples: Merger Agreement (Transcat Inc)
Restrictive Covenants. (a) During From the term date hereof until the fifth (5th) anniversary of this Agreement and for a period of one (1) year after the termination or expiration thereofClosing Date, the Employee will Sellers shall not, and shall cause their respective Subsidiaries not to, directly or indirectly:
(i) within any of the Restricted Jurisdictions, be interested in or own or manage, operate, control, be employed by or participate or assist in the ownership, management, operation or control of any business engaged in, or that competes with the Business, directly or indirectly (other than (x) risk management or management consulting services which are consistent with the past practice of the Project Management Business in the twelve (12) months preceding the date of this Agreement, and which do not relate to claims or resolution of claims (unless such services are a continuation of a Contract of the Project Management Business with any Person and such services represent no more than 5% of the aggregate revenues relating to that Person under the relevant Contract) or (y) in respect of the period from the date hereof to the Closing Date, the ownership and operation of the Business itself);
(ii) solicit for employment or hire any employee of or consultant to any Company or Company Subsidiary or any Person who was an employee or consultant within the one-year period prior to being solicited or hired (or such shorter period if required by Applicable Law); provided, that this clause (ii) shall not preclude any Seller or Affiliate of any Seller from soliciting for employment or hiring any such employee or consultant who (A) responds to a general solicitation through a public medium or general or mass mailing by or on behalf of such Seller or any of its Affiliates that is not targeted at the employees of or consultants to any Company or Company Subsidiary or (B) has been terminated by any Company or Company Subsidiary prior to being solicited for employment by any Seller or Affiliate of any Seller; or
(iii) solicit or endeavor to solicit Business from or entice away from any Company or Company Subsidiary, endeavor to reduce the Business conducted with any Company or Company Subsidiary by, or otherwise interfere with the Business relationship of any Company or Company Subsidiary with, any Person who is, or was within the three-year period prior thereto, a customer or client of, supplier, vendor or service provider to, or other Person having material Business relations with, any Company or Company Subsidiary. From the Closing Date until the fifth (5th) anniversary of the Closing Date, the Sellers, where an opportunity to make such a referral exists, shall use best efforts to refer its clients who require claims consulting services or other advice which is part of the offering of the Business to any Company or Company Subsidiary save that the Sellers shall not be required to incur any out-of-pocket expenses in fulfilling such referral obligations. For the avoidance of doubt, the continued conduct by the Sellers of the Project Management Business in the manner in which the Project Management Business (as an individual proprietordistinct from the Business) is conducted as of the date of this Agreement, partnerwithout more, stockholdershall not be deemed to be a violation of this Section 5.1. Notwithstanding anything to the contrary in this Agreement, officerthe Sellers shall not be prohibited from (A) providing claims management services or fact-based testimony services which are a continuation of a Contract of the Project Management Business with any Person (and which services represent no more than 5% of the aggregate revenues relating to that Person under the relevant Contract or Contracts) or endeavoring to solicit the business of any Person for the Project Management Business, in each case, in the manner in which the Project Management Business (as distinct from the Business) is conducted as of the date of this Agreement; or (B) engaging one or more subcontractors to provide claims management services or fact-based testimony services to clients of the Project Management Business in connection with a continuation of a Contract of the Project Management Business with any Person (and which services represent no more than 5% of the aggregate revenues relating to that Person under the relevant Contract or Contracts); provided that, in the case of both (A) and (B), the Sellers shall not take or permit any action to be taken (x) with the intent of reducing or interfering in any way with any relationship of any Company or Company Subsidiary with any client, potential client, employee, director, joint venturer, investor, lendercontractor or supplier, or (y) which is inconsistent with the past practice of the Project Management Business in the twelve (12) months preceding the date of this Agreement.
(b) At all times after the Closing Date, the Sellers shall not, and shall cause their respective Affiliates not to, directly or indirectly:
(i) disclose, divulge or make use of any trade secrets or other capacity whatsoever information of a business, financial, marketing, technical or other nature pertaining to the Purchasers, the Companies, the Company Subsidiaries or the Business, including information of others that the Purchasers, any Company or any Company Subsidiary has agreed to keep confidential, except (a) to the extent that such information shall have become public knowledge other than as the holder by breach of not more than one percent (1%) this Agreement by any of the total outstanding stock Sellers,
(b) to the extent such information becomes available to the Sellers or any of their Affiliates after the Effective Time on a publicly held company), engage in the business of developing, producing, marketing or selling services non-confidential basis from a source other than any of the kind Companies or type developed Company Subsidiaries or being developedany of their respective Affiliates, produced(c) to the extent that disclosure of such information is requested by any Governmental Entity or is otherwise required by Applicable Law (but, marketed to the extent permitted by Applicable Law, only after the Sellers have provided the Companies with reasonable notice and opportunity to take action against any such requested or sold required disclosure) or (d) to the extent the use or disclosure of such information is (A) permitted by or necessary for the Company while performance by any Seller of this Agreement or the Employee was employed by Transition Services Agreement or (B) necessary to enforce any of Seller’s rights under this Agreement or the CompanyTransition Services Agreement; or
(ii) hiremake or cause to be made any disparaging statements regarding any Company, engageany Company Subsidiary, recruitany Purchaser, solicit or inducethe Sponsor, or attempt any of their respective Affiliates or the Business; provided, that the foregoing shall not prohibit any Seller from making any truthful statements (if required by any contract existing as at the date of this Agreement or by law to inducemake such a statement) or testifying truthfully in any action, any current proceeding, investigation, case, or prospective employee, officer, director, contractor similar venue or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of communication with any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceableGovernmental Entity.
(c) The restrictions contained in Sections 6, 7 It is the desire and 8 are necessary for the protection intent of the business parties to this Agreement that the provisions of Section 5.1 shall be enforced to the fullest extent permissible under the law and goodwill public policies applied in each jurisdiction in which enforcement is sought. If any provision of Section 5.1 is at any time determined to be invalid or unenforceable by reason of being vague or unreasonable as to duration, area, scope of activity or otherwise, then such provision will be considered divisible (with the Company other provisions of this Agreement to remain in full force and are considered by effect) and the Employee invalid or unenforceable provisions will not become and be deemed to be immediately amended to include only such time, area, scope or activity and other restrictions as will be determined to be reasonable for such purpose. The Employee and enforceable by the court or other body having jurisdiction over the matter, and each party expressly agrees that this Agreement, as so amended, will be valid and binding as though any breach of Sections 6, 7 invalid or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary unenforceable provision had not been included herein.
Appears in 1 contract
Samples: Stock Purchase Agreement (Hill International, Inc.)
Restrictive Covenants. (a) During Each Seller agrees that, from the term Closing Date until the fifth (5th) anniversary of the Closing Date, such Seller shall not, and shall cause each of such Seller’s controlled Affiliates not to, directly or indirectly, in any manner (whether on his or her own account, or as an owner, operator, manager, consultant, officer, director, employee, investor, agent or otherwise), (i) engage or assist others directly or indirectly in any Competing Business (whether through operating activities, employment, consultation, advisory services, representation on a board of directors or other similar governing body), (ii) own any interest in, manage, control, provide financing to, participate in (whether as an owner, operator, manager, consultant, officer, director, employee, investor, agent, representative or otherwise), render services for or consult with any Person that is engaged in any Competing Business or (iii) knowingly interfere in any material respect with the existing business relationships between any Company, on the one hand, and any customer, supplier, licensee, licensor or client of any such Company, on the other hand, by encouraging or inducing such customer, supplier, licensee, licensor or client to cease doing business with or reducing the amount of business conducted with such Company.
(b) Each Seller agrees that, from the Closing Date until the fifth (5th) anniversary of the Closing Date, such Seller shall not, and shall cause each of such Seller’s controlled Affiliates not to, directly or indirectly, in any manner (whether on his or her own account, as an owner, operator, manager, consultant, officer, director, employee, investor, agent or otherwise), solicit, entice, encourage or influence, or attempt to solicit, entice, encourage or influence, any employee of a Company that is on the payroll of a Company on or after January 1, 2024 (each a “Restricted Employee”) to resign or otherwise leave the employ of Buyer or the Companies or otherwise hire, employ, engage or contract with any Restricted Employee to perform services other than for the benefit of Buyer or the Companies; provided, however, that this Agreement provision will not restrict the ability to solicit any Person (and to hire such Person thereafter) through a general advertisement not directed specifically to any such Person.
(c) Notwithstanding Section 7.10(a) and Section 7.10(b), no Seller nor such Seller’s controlled Affiliates shall be prohibited from or restricted in any way with respect to (i) advertising job openings by use of third party recruiters, newspapers, magazines, the Internet, social media and other media not specifically directed at one or more Restricted Employees or hiring any such Restricted Employees as a result thereof, (ii) hiring or soliciting any Restricted Employee who has been terminated by, or has terminated employment with, Buyer, the Companies or any Affiliate thereof for a period of one at least six (16) year after the termination months prior, so long as there was no solicitation prohibited hereunder by such Seller or expiration thereofsuch Seller’s Affiliates prior thereto, the Employee will not directly or indirectly:
(iiii) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender, or continuing to engage in any other capacity whatsoever business that such Seller or any of such Seller’s Affiliates (other than the Competing Business) engages in as of the holder date of this Agreement, (iv) holding not more than one two percent (12%) of the outstanding voting securities of any of any company traded on a national securities exchange that is engaged in a Competing Business, or (v) acquiring, and following such acquisition, actively engaging in any business that has a subsidiary, division, group, franchise or segment that is engaged in any Competing Business, so long as for the most recent fiscal year ending prior to the date of such acquisition, the revenues derived from the Competing Business activities were less than five percent (5%) of the total outstanding stock consolidated revenues of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Companysuch business.
(ivd) For Each Party agrees that, from the purposes Closing Date until the fifth (5th) anniversary of these restrictionsthe Closing Date, the word “prospective” such Party shall not, and shall cause each of such Party’s controlled Affiliates not to, directly or indirectly, in any manner, make or publish, verbally or in writing, any statements concerning any other Party or any of its respective Representatives which statements are or reasonably would be construed as disparaging such other Party or any of its Representatives; provided, however, that such restrictions shall not apply to any individual confidential communications with any Governmental Authority (including communications made in the course of any government investigation or entity in connection with which any “whistleblower” claims or matters), shall not prohibit truthful statements or filings reasonably made in any Action involving a Party or its Representatives, this Agreement or the Company has had substantive contact within the twelve month period prior to transactions contemplated hereby and shall not prohibit a Party from enforcing its rights pursuant this Agreement or any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringother Contract.
(be) If any restriction set forth in If, at the time of enforcement of this Section 6 is found by any 7.10, a court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities arbitrator holds that the restrictions stated herein are unreasonable under circumstances then existing, the Parties agree that the maximum period, scope or in too broad a geographic area, it geographical area reasonable under such circumstances shall be interpreted substituted for the stated period, scope or area and that such court or arbitrator shall be allowed to extend only over revise the restrictions contained therein to cover the maximum period period, scope and area permitted by Law. Because each Seller has had access to confidential, non-public or proprietary information and materials regarding the Companies by virtue of timesuch Seller’s investment in and involvement with (and, range of activities or geographic area as to which it applicable, employment by) the Companies, the Parties agree that Buyer and its Affiliates may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any suffer irreparable harm from a breach of Sections 6this Section 7.10 by such Seller and that, 7 or 8 will cause the Company substantial and irrevocable damage and thereforein such case, money damages might not be an adequate remedy for any such breach of this Agreement. Therefore, in the event of a breach or threatened breach of this Section 7.10 by any such breachSeller, Buyer (in addition to such other rights and remedies which may existing in its favor) shall be available, the Company shall have the right entitled to seek specific performance and and/or injunctive or other equitable relief in any from a court of competent jurisdictionjurisdiction in order to enforce, regardless or prevent any violations of, this Section 7.10. Each Seller acknowledges further that (i) the restrictions and limitations set forth in this Agreement will not materially interfere with its respective businesses and operations following the consummation of any statement the transactions contemplated hereby, and (ii) the consideration it will receive in connection with the Closing is a material condition in agreeing to the contrary hereinterms and conditions of this Agreement. For the avoidance of doubt, for purposes of this Section 7.10, references to “controlled Affiliates” shall also include spouses of the applicable Seller and, with respect to only Xxxxxxx and Xxxxx, shall also include their children and the spouses of such children.
Appears in 1 contract
Restrictive Covenants. (a) During The Seller covenants that, commencing on the term Closing Date and ending on the fifth anniversary of this Agreement and for a period of one the Closing Date (1) year after the termination or expiration thereof“Restricted Period”), the Employee will not Seller, its Subsidiaries or their respective Affiliates shall not, directly or indirectly:
(i) as an individual proprietor, partnerin any capacity, stockholder, officer, employee, director, joint venturer, investor, lenderengage in or have any direct or indirect ownership interest in, or permit its name to be used in connection with, any other capacity whatsoever (other than as business anywhere in the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company)United States which is engaged, engage either directly or indirectly, in the business of developing, producing, marketing or selling any products or equipment or providing any services which are competitive with products, marketed, sold or under development by, or services provided by, the Business as of the kind or type developed or being developedEffective Date (the “Restricted Business”); provided, producedhowever, marketed or sold that (i) the performance by the Company while Seller of its obligations under the Employee was employed by the Company; or
Services Agreement shall not be deemed a violation of this Section 5.2(a) and (ii) hirethe fulfillment of any incidental request by the Seller’s customers shall not be deemed a violation of this Section 5.2(a) provided that the Seller fulfills such request solely by directing the Buyer or its Affiliates to fulfill such request pursuant to the Services Agreement. It is recognized that the Restricted Business is expected to be conducted throughout the United States and that more narrow geographical limitations of any nature on this non-competition covenant (and the covenant set forth in Section 5.2(b)) are therefore not appropriate.
(b) The Seller covenants that during the Restricted Period, engagenone of the Seller, recruitits Subsidiaries or Affiliates shall, (i) solicit the employment or engagement of services of any Transferred Employee, or persuade, induce or attempt to persuade or induce any such Person to leave his, her or its employment or to refrain from providing services to the Buyer or its Affiliates, (ii) solicit or induce, or in any manner attempt to solicit or induce, or cause or authorize any current other Person to solicit or prospective employeeinduce any Person to cease, officer, director, contractor diminish or other not commence doing business associate of with the Company Buyer or its Affiliates solely as related to terminate their employment withthe Business or the Purchased Assets, or otherwise cease their business relationship with, the Company; or
(iii) solicitdisparage the Business to any Person; provided, divert however, that (i) general solicitations for employment not specifically targeting the Buyer’s personnel shall not be considered a breach of this Section and (ii) the Seller may solicit but not hire persons who are referred to the Seller by search firms, employment agencies or take away, or attempt other similar entities provided that such entities have not been instructed by the Seller to divert or to take away, solicit the business or patronage of any employees of the clientsBuyer; and (iii) the Seller may solicit and hire an employee that responded to a published advertisement, customers including web or accounts, other job postings or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceablejob fair.
(c) The Seller acknowledges that the restrictions contained in Sections 6, 7 this Section 5.2 are reasonable and 8 are necessary for to protect the protection legitimate interests of the business Buyer and goodwill constitute a material inducement to the Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. The Seller acknowledges that any violation of this Section 5.2 will result in irreparable injury to the Buyer and agrees that the Buyer shall be entitled to preliminary and permanent injunctive relief, without the necessity of proving actual damages, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of this Section 5.2, which rights shall be cumulative and in addition to any other rights or remedies to which the Buyer may be entitled. Without limiting the generality of the Company foregoing, the Restricted Period shall be extended for an additional period equal to any period during which the Seller is in breach of its obligations under this Section 5.2.
(d) In the event that any covenant contained in this Section 5.2 should ever be adjudicated to exceed the time, geographic, product or service or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and are considered such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service or other limitations permitted by the Employee to be reasonable for such purposeapplicable Law. The Employee agrees that any breach of Sections 6, 7 covenants contained in this Section 5.2 and each provision thereof are severable and distinct covenants and provisions. The invalidity or 8 will cause the Company substantial and irrevocable damage and therefore, in the event unenforceability of any such breachcovenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, in addition to and any such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief invalidity or unenforceability in any court of competent jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction, regardless of any statement to the contrary herein.
Appears in 1 contract
Restrictive Covenants. (ai) During Each of the term Shareholders, other than the Indemnifying Shareholders (the "Restricted Shareholders"), and the Company acknowledge that in order to assure NTI and Newco that NTI and Newco will retain the value of this Agreement the Purchased Assets as a "going concern," the Restricted Shareholders and for the Company agree not to utilize their special knowledge of the business of the Company and their relationships with customers, suppliers and others to compete with NTI and Newco. For a period of one (1) year after five years beginning on the termination or expiration thereofClosing Date, the Employee will Restricted Shareholders and the Company shall not directly engage or indirectly:
(i) have an interest, anywhere in Taiwan or any other geographic area where NTI or Newco does business or in which its products or services are marketed, alone or in association with others, as an individual proprietorprincipal, officer, agent, employee, director, partner, stockholder, officeror through the investment of capital, employeelending of money or property, directorrendering of services or otherwise, joint venturerin any business competitive with or similar to that engaged in by the Company, investorNTI or Newco as of the Closing Date provided, lenderhowever, that the Company may enter into one business transaction per year with the prior written consent of Newco for the sole purpose of maintaining the Company's corporate registration. During the same period, the Restricted Shareholders and the Company shall not, and shall not permit any of its or his or her employees, agents or others under its or his or her control to, directly or indirectly, on behalf of any of them or any other Person, other than NTI or Newco, (A) call upon, accept business from, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in solicit the business of developingany Person who is, producingor who had been at any time during the preceding two years, marketing or selling services a customer of the kind Company, NTI or type developed Newco or being developedany successor to the business of the Company, producedNTI or Newco or otherwise divert or attempt to divert any business from the Company, marketed NTI or sold Newco or any such successor, provided, however, that the Shareholders may cause the Company to, and the Company may furnish replacement products to the Company's former customers for the sole purpose of fulfilling the Company's product warranty obligations to such former customers, if any or (B) recruit or otherwise solicit or induce any person who is an employee of, or otherwise engaged by, the Company, NTI or Newco, or any person that NTI, Newco or any successor thereto placed (or was a candidate or applicant for placement) for employment or engagement with any of its clients, customers or other Persons to terminate his or her employment or other relationship with the Company, NTI or Newco or such successor, or any Person with whom such person has been placed for employment or engagement), or hire any person who has left the employ of the Company, NTI or Newco or any such successor or any Person with whom such Person was placed for employment or engagement during the preceding two years. The Shareholders and the Company shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, mark, logo, trade dress or other identifying words or images wxxxx are the same as or similar to those used currently or in the past by the Company while in connection with any product or service, whether or not such use would be in a business competitive with that of NTI or Newco. The ownership or control of up to five percent of the Employee was employed by outstanding voting securities or securities of any class of a company with a class of securities which are publicly traded shall not be deemed to be a violation of the Company; orprovisions of this Section. The obligations of the Restricted Shareholders and the Company hereunder shall be joint and several. The Parties understand and acknowledge that Johan Olstenius shall be subject to the restrictive covenants set forth in the Employment Agreement and Li-Chen Liu shall be subject to the restrictive covenanxx xxx xxrth in the Noncompetition Agreement.
(ii) hire, engage, recruit, solicit The Company and the Restricted Shareholders acknowledge that the Intellectual Property and all other confidential or induce, or attempt proprietary information with respect to induce, any current or prospective employee, officer, director, contractor or other the business associate and operations of the Company and with respect to terminate their employment withthe Purchased Assets are valuable, special and unique. The Company and the Restricted Shareholders shall not, at any time after the Closing Date, disclose, directly or indirectly, to any Person, other than NTI or Newco, or otherwise cease their business relationship withuse or purport to authorize any Person to use any confidential or proprietary information with respect to the Company, the Purchased Assets, NTI or Newco, whether or not for their own benefit, without the prior written consent of NTI or Newco, including without limitation, information as to the financial condition, results of operations, customers, strategic partners, job applicants, job candidates, persons placed for employment or engagement, suppliers, products, products under development, services, inventions, sources, leads or methods of obtaining new products or business, Intellectual Property, pricing methods or formulas, cost of supplies, marketing strategies or any other information relating to the Company; or, the Purchased Assets, NTI and Newco which could reasonably be regarded as confidential, but not including information which is or shall become generally available to the public other than as a result of an unauthorized disclosure by the Restricted Shareholders or the Company or a Person to whom the Restricted Shareholders or the Company has provided such information. The Shareholders and the Company acknowledge that NTI and Newco would not enter into this Agreement without the assurance that all such confidential and/or proprietary information will be used for the exclusive benefit of Newco.
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction The restrictions set forth in this Section 6 is found 6(n) are considered by any court of competent jurisdiction the parties to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary reasonable for the protection purposes of protecting the value of the business and goodwill of NTI and Newco and the Purchased Assets. The Parties acknowledge that NTI and Newco would be irreparably harmed and that monetary damages would not provide an adequate remedy to NTI and Newco in the event the covenants contained in this Section 6(n) were not complied with in accordance with their terms. Accordingly, the Shareholders and the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees agree that any breach or threatened breach by any of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event them of any such breachprovision of this Section 6(n) shall entitle NTI and Newco to injunctive and other equitable relief to secure the enforcement of these provisions, in addition to such any other remedies which may be availableavailable to them, and that they shall be entitled to receive from the Shareholders and the Company reimbursement for all attorneys' fees and expenses incurred by NTI and Newco in enforcing these provisions. In addition to its other rights and remedies, NTI and Newco shall have the right to seek specific performance require the Shareholders or the Company, if either breaches any of the covenants contained in this Section 6(n) to account for and injunctive relief pay over to NTI and Newco, as the case may be, all compensation, profits, money, accruals and other benefits derived or received, directly or indirectly, by such party from the action constituting such breach. If the Shareholders or the Company breaches the covenant set forth in this Section 6(n), the running of the five-year period described therein shall be tolled for so long as such breach continues. It is the desire and intent of the parties that the provisions of this Section 6(n) be enforced to the fullest extent permissible under the laws and public policies of each jurisdiction in which enforcement is sought. If any provisions of this Section 6(n) relating to the time period, scope of activities or geographic area of restrictions is declared by a court of competent jurisdictionjurisdiction to exceed the maximum permissible time period, regardless scope of any statement activities or geographic area, the maximum time period, scope of activities or geographic area, as the case may be, shall be reduced to the contrary hereinmaximum which such court deems enforceable. If any provisions of this Section 6(n) other than those described in the preceding sentence are adjudicated to be invalid or unenforceable, the invalid or unenforceable provisions shall be deemed amended (with respect only to the jurisdiction in which such adjudication is made) in such manner as to render them enforceable and to effectuate as nearly as possible the original intentions and agreement of the parties.
Appears in 1 contract
Restrictive Covenants. (a) During Seller covenants that, commencing on the term Closing Date and ending on the second anniversary of this Agreement and for a period of one (1) year after the termination or expiration thereofof the Supply Agreement in accordance with its terms (the “Noncompetition Period”), the Employee will Seller shall not, and it shall cause its Affiliates not to, directly or indirectly:
(i) as an individual proprietor, partnerin any capacity, stockholder, officer, employee, director, joint venturer, investor, lenderengage in or have any direct or indirect ownership interest in, or permit Seller's or any such Affiliate's name to be used in connection with, any other capacity whatsoever (other than as the holder of not more than one percent (1%) business anywhere outside of the total outstanding stock United States of a publicly held company)America, engage its possessions and territories, which is engaged, either directly or indirectly, in the business of designing, developing, producingmanufacturing, marketing or selling any products or equipment or providing any services which are competitive with products or equipment designed, manufactured, marketed, sold or under development by, or services provided by, the Business; provided, however, that notwithstanding the preceding restrictions, Seller and its Affiliates shall be permitted to apply for and otherwise seek product registrations, provided that no products resulting from such product registrations may be sold during the Noncompetition Period; and provided further that the preceding restrictions shall not apply with respect to products developed or commercialized by any future acquirer of Seller (other than products developed or commercialized by any members of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period Seller Group prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringClosing Date).
(b) If Seller covenants that during the Noncompetition Period, Seller shall not, and it shall cause its Affiliates not to, directly or indirectly, (i) induce or encourage any restriction set forth in current client, customer, supplier, distributor, agent or licensor of the Business, or any former client, customer, supplier, distributor, agent or licensor of the Business as operated by the Seller Group during the 12-month period prior to the Closing Date (provided that any client, customer, supplier, distributor, agent or licensor of the Business on the date of this Section 6 Agreement is found by any court of competent jurisdiction presumed to be unenforceable because it extends a current client, customer, supplier, distributor, agent or licensor, respectively, of the Business immediately following the Closing), to terminate any such relationship with the Business or (ii) solicit, for too long a period themselves or any Person (other than Buyer or any of time its Affiliates), any business or over too great a range business relationship with any distributor or agent of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceableBusiness.
(c) The Seller covenants that during the Noncompetition Period, Seller shall not, and it shall cause its Affiliates not to, solicit the employment or engagement of services of any person who is offered or accepts employment by Buyer pursuant to Section 7.2 or is or was employed as an employee, consultant or contractor in the Business or a distributor or agent of the Business during the Noncompetition Period on a full- or part-time basis, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, however, that nothing in this Section 6.8(c) shall prevent Seller or any of its Affiliates from hiring (i) any employee whose employment has been terminated by Buyer, (ii) after 90 days from the date of termination of employment, any employee whose employment has been terminated by the employee or (iii) after 30 days from the date that such person has declined an offer of employment from the Buyer, any such person who declines an offer of employment from the Buyer.
(d) Seller acknowledges that the restrictions contained in Sections 6this Section 6.8 are reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. Seller acknowledges that any violation of this Section 6.8 will result in irreparable injury to Buyer and agrees that Buyer shall be entitled to preliminary and permanent injunctive relief, 7 without the necessity of proving actual damages, as well as an equitable accounting of all earnings, profits and 8 are necessary for other benefits arising from any violation of this Section 6.8, which rights shall be cumulative and in addition to any other rights or remedies to which Buyer may be entitled. Without limiting the protection generality of the business foregoing, the Noncompetition Period shall be extended for an additional period equal to any period during which Seller or any Affiliate is in breach of its obligations under this Section 6.8.
(e) In the event that any covenant contained in this Section 6.8 should ever be adjudicated to exceed the time, geographic, product or service or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and goodwill of such covenant shall be deemed reformed, in such jurisdiction to the Company and are considered maximum time, geographic, product or service or other limitations permitted by the Employee to be reasonable for such purposeapplicable Law. The Employee agrees that any breach of Sections 6, 7 covenants contained in this Section 6.8 and each provision thereof are severable and distinct covenants and provisions. The invalidity or 8 will cause the Company substantial and irrevocable damage and therefore, in the event unenforceability of any such breachcovenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, in addition to and any such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief invalidity or unenforceability in any court of competent jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction, regardless of any statement to the contrary herein.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Alphatec Holdings, Inc.)
Restrictive Covenants. (a) During Non-Competition and Non-Solicitation. Company and Principal Shareholder agree that during the term of this Agreement period commencing on the date hereof and for a period of one continuing through the date that is five (15) year years after the termination or expiration thereofClosing Date, the Employee will not neither they nor any of their Restricted Parties (as defined below), shall, directly or indirectly:
indirectly (iA) engage (including as an individual proprietor, partner, stockholdera director, officer, employee, investor, lender, consultant or in any other capacity with respect to an entity that engages in whole or in part) in the registration, development, importation, manufacture, marketing, sale or distribution of vaccines, adjuvants, cell lines, master seeds or any components of the foregoing products (or any related products), or any product that is, or if registered or approved would be, competitive with, or a substitute for, any of the Products, anywhere in the world (assuming registered or approved in such jurisdiction, if required), (B) except as disclosed in Schedule 12.16, hire, including as a director, joint venturerofficer, employee, investor, lender, consultant or in any other capacity whatsoever capacity, any then-current employee of Company as of the Closing Date other than such employees whose employment with Purchaser has been terminated by Purchaser for reasons other than the conduct of the employee consisting of improper performance or nonperformance of the employee’s duties and responsibilities, engaging in willful misconduct including fraud or misrepresentation, conviction of a felony or misdemeanor (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held companytraffic violations), engage in repetitive drunkenness or drug abuse, or violation of Company policies or the business code of developingconduct, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(iiC) hire, engage, recruit, solicit or induce, induce or attempt to induce, any current or prospective employeedirector, officer, directoremployee, contractor representative or other business associate agent of Purchaser or any of its Affiliates engaged in the manufacture, storage, distribution or sale of the Company Products to terminate their employment withleave the employ of Purchaser or any such Affiliate, or otherwise cease violate the terms of their business relationship withcontracts, the Company; or
or any employment arrangements, with Purchaser or any such Affiliate, or (iiiD) solicit, solicit or divert or take away, or attempt to solicit or divert any current or former customer, supplier or employee of the Business anywhere in the world; provided, however, that it shall not be deemed to take awaybe a violation of this subsection (a) for such Person or a Restricted Party of such Person to invest in securities having less than five percent (5%) of the outstanding voting power of any Person, the business securities of which are publicly traded or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary herein.listed on any
Appears in 1 contract
Samples: Asset Purchase Agreement
Restrictive Covenants. (a) During 16.1 The Employee hereby covenants with the term Company that he shall not during the period of this Agreement his employment hereunder and for a period of one (1) year month after the termination or expiration thereofof this Agreement for whatever reason, the Employee will not whether directly or indirectly, on his own account or in conjunction with or on behalf of any person or entity:
(i1) as an individual proprietorsolicit or entice away from the Company, partneror employ or cause any third party, stockholderto employ or engage any person who has been a client, officeragent, employee, directorcontractor, joint venturer, investor, lendersub-contractor, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) supplier of the total outstanding stock Company at any time within a period of a publicly held company)twelve (12) months prior to the termination of this Agreement, engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; orand
(ii2) hire, engage, recruit, solicit or induceinduce or otherwise interfere with any person or entity who is or has been a client, agent, contractor, sub-contractor, supplier or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment withcease dealing with the Company or to restrict or reduce its volume, extent or duration of trade, dealing or transaction with the Company, or introduce or cause to be introduced such person or entity to any business or activity which is in competition or otherwise cease their business relationship withinconsistent with the interest of the Company. Xxxxxx 000-000, 0/X, XXXX Xxxxx, Three Garden Road, Central, Hong Kong During the term of this Agreement and during the period commencing with the date of termination of this Agreement and ending on the date one (1) month later, the Company; or
Employee shall not, in Hong Kong, whether directly or indirectly, on his account or in conjunction with or on behalf of any entity or business, whether through himself or any company or business where he directly or indirectly holds any ownership or beneficial interests (iiisave and except for ownership or beneficial interests in any listed company, whether listed in or outside Hong Kong, provided that his ownership or beneficial interests in the said listed company does not exceed 1% of the total issued share capital of that said listed company) solicitor in which he is a director or partner or proprietor, divert be employed by, be involved in the activities or take awaybusiness of, or attempt provide services (unless with the consent of the Company) for related activities of which the Employee is engaged in during his employment with the Company, to divert or to take away, the business or patronage of any of the Company’s agents, clients, customers or accountscompetitors, or prospective clients, customers other persons or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity businesses with which the Company has or has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringcommercial relations.
(b) If any restriction set forth 16.2 The parties hereto acknowledge and confirm that the above covenants or restrictions in this Section 6 is found by any court of competent jurisdiction Clause 16 are reasonable and necessary to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over protect the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection legitimate business interests of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary hereinCompany.
Appears in 1 contract
Restrictive Covenants. (a) During the term Restricted Period, each Seller must not engage or be involved or interested in, and must procure that no Affiliate of this Agreement and for a period of one (1) year after the termination such Seller engages or expiration thereofis involved or interested in, the Employee will not either directly or indirectly:
(i) indirectly and whether as an individual proprietor, a partner, stockholder, officer, employee, director, joint venturer, investorfinancier or shareholder, lenderemployee of or consultant to, any entity or otherwise, a Protected Business in any other capacity whatsoever (the Restricted Area other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringPermitted Interest.
(b) If During the Restricted Period, each Seller must not approach, and must procure that no Affiliate of such Seller approaches, either solely or jointly with any restriction set forth other Person and in this Section 6 any capacity whatsoever, any Person whom the Seller is found by aware is a customer or client of the Company or any court of competent jurisdiction to be unenforceable because it extends for too long a its Subsidiaries as of the Closing or at any time during the period of time twenty-four (24) months prior to the Closing for the purpose of persuading that Person to cease doing business with the Company or over too great a range any of activities its Subsidiaries or in too broad a geographic area, it shall be interpreted to extend only over reduce the maximum period amount of time, range business that the customer or client would otherwise do with the Company or any of activities or geographic area as to which it may be enforceableits Subsidiaries.
(c) The restrictions contained in Sections 6During the Restricted Period, 7 each Seller must not approach or solicit, and 8 are necessary must procure that no Affiliate of such Seller approaches or solicits, any Person whom the Seller is aware is, or was any time during the period of twenty-four (24) months prior to the Closing, an agent or employee of the Company or any of its Subsidiaries for the protection purpose of recruiting that Person. This restriction does not apply where a Person responds to a bone fide solicitation by a Seller through an advertisement, online posting, or any search firm that does not specifically target any agent or employee of the business Company or any of its Subsidiaries.
(d) During the Restricted Period, each Seller must not hire or employ, and must ensure that no Affiliate of such Seller hires or employs, any Person whom the Seller is aware is, or was any time during the period of twenty-four (24) months prior to the Closing, an agent or employee of the Company or any of its Subsidiaries.
(e) During the Restricted Period, each Seller must not, and must procure that each Affiliate of such Seller must not, disparage the Company, any of the Company’s Subsidiaries, Purchaser, any Affiliate of Purchaser or any of their respective officers, directors, shareholders, members or employees in any matter, provided that the foregoing shall not prohibit any Seller or any Affiliate of such Seller from responding accurately and fully to any question, inquiry, or request for information required by legal or administrative process or in connection with the enforcement of Seller’s rights under this Agreement.
(f) Each of the obligations set out in this section is severable and independent so that if any part or provision of it is invalid or unenforceable by a court of Law then such provision must be considered to be automatically deleted from this Agreement. Any such deletion must apply only to that portion of any provision so adjudicated, and the operation of such provision must only be deemed inapplicable in the particular jurisdiction in which the adjudication is made.
(g) Each Seller acknowledges that (i) the covenants given in this section are fundamental to the Purchaser’s and Parent’s decision to enter into this Agreement; (ii) it has obtained, or has had the opportunity to obtain, independent legal advice in relation to this Agreement and in particular this section; and (iii) each of the separate restrictions in this section is fair and reasonable in all the circumstances and necessary to protect, amongst other things, the goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach Subsidiaries and the interests of Sections 6, 7 or 8 will cause the Purchaser and Parent in the Company substantial and irrevocable damage the Subsidiaries and therefore, the value of the Shares.
(h) This Section 7.6 does not restrict a Seller from performing any employment agreement with the Company or any of its Subsidiaries.
(i) The meanings of the terms used in the event this section which have not otherwise been defined are set out below. Permitted Interest acquiring as an investment not more than two percent (2%) of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court class of competent jurisdiction, regardless securities of any statement to entity that has a class of securities listed on a national stock exchange, so long as the contrary hereinSeller or its Affiliate remains a passive investor in such entity.
Appears in 1 contract
Restrictive Covenants. (a) During 10.1.1 In order to assure that LKQ will realize the term value and goodwill inherent in the Company, each of this Agreement the Shareholders agrees with LKQ that he or she shall not, and none of his or her affiliates shall, directly or indirectly, either for himself, herself or for any other person for a period of one (1) year after five years following the termination or expiration thereof, the Employee will not directly or indirectly:
Closing Date: (i) engage in, represent, furnish consulting services to, be employed by or have any interest in (whether as an individual proprietorowner, principal, director, officer, partner, stockholderagent, officerconsultant, employeeshareholder, director, joint venturer, investor, lender, member or in otherwise) any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold which would be competitive with any business conducted by the Company while the Employee was employed by the Company; or
anywhere within a one hundred (ii100) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate mile radius of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage locations of any of the clientsfacilities of BAP or SAP on the date hereof; provided, customers however, that each Shareholder may acquire and hold an aggregate of up to two percent of the outstanding shares of any corporation engaged in any such business if such shares are publicly traded in an established securities market; (ii) induce any customer of LKQ or accountsits subsidiaries to patronize any such competitive business or otherwise request or advise any such customer to withdraw, curtail or cancel any of its business with LKQ or its subsidiaries; or (iii) solicit for employment, or prospective clientsassist any other person in soliciting for employment, customers or accounts, of the Company which were contacted, solicited or served by the Employee while any person employed by the Companyany of LKQ or its subsidiaries.
(iv) For the purposes 10.1.2 If any provision of these restrictionsthis Section 10.1, as applied to any party or to any circumstance is adjudged by a court to be invalid or unenforceable, the word “prospective” same shall apply to in no way affect any individual other provision or entity with which any other part of this Agreement, the Company has had substantive contact within application of such provision in any other circumstances or the twelve month period prior to any potential hiring, solicitation, recruiting, diversion validity or otherwiseenforceability of this Agreement. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 such provision, or any part thereof, is found by any court of competent jurisdiction held to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill duration of such provision or the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be availablearea covered thereby, the Company parties agree that the court making such determination shall have the right power to seek reduce the duration and/or area of such provision, and/or to delete specific performance words or phrases, and injunctive relief in any court of competent jurisdiction, regardless its reduced form such provision shall then be enforceable. Upon breach of any statement provision of this Section 10.1, LKQ shall be entitled to injunctive relief, since the contrary remedy at law would be inadequate and insufficient. In addition, LKQ shall be entitled to such Damages as it can show it has sustained by reason of such breach.
10.1.3 In consideration of the obligations of the Shareholders herein, LKQ shall pay, by wire transfer, at Closing $40,000 to Xxxxx Xxxxxxxx and $40,000 to Xxxxxxx Xx.
Appears in 1 contract
Samples: Stock Purchase Agreement (LKQ Corp)
Restrictive Covenants. (a) During the term of this Agreement and Seller hereby agrees that, for a period of one three (13) year years after the termination or expiration thereofClosing Date, the Employee Seller will not, and will cause its Affiliates and Representatives not to, directly or indirectly:
(i) , whether as an individual proprietor, a partner, stockholder, officer, employee, director, joint venturer, investoremployer, lenderemployee, consultant, contractor, shareholder, member, partner, principal, manager, agent or otherwise, own, invest in, manage, operate, finance, join, control or participate in or lend money or such Person’s reputation to, any business, whether in corporate, limited liability company or partnership form or otherwise, which in any way engages in any business that competes with the precision manufacturing, fabrication, complex machining, tooling or milling business or any other business carried on by Company at the Closing Date; provided, however, that (i) nothing herein shall be construed to prevent Seller from holding as a passive investment not more than five percent (5%) of the shares in any company whose shares are quoted on any stock exchange or inter-dealer quotation system, and (ii) such three (3) year period will be extended by and for the duration of any period of time during which any Person is in violation of any provision of this Section 4.09(a).
(b) Seller hereby agrees that, for a period of three (3) years after the Closing Date Seller will not, and will cause its Affiliates and Representatives not to, directly or indirectly, whether as a partner, joint venturer, employer, employee, consultant, contractor, shareholder, member, partner, principal, manager, agent or otherwise, (i) induce or attempt to induce, or cause any officer, director or employee of the Company to leave the employ of or existing relationship with the Company, or in any other capacity whatsoever (other than as way materially interfere with the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by relationship between the Company, on the one hand, and any such officer, director or employee, on the other hand; or
or (ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current customer, salesperson, reseller, distributor, supplier, vendor, manufacturer, representative, agent, jobber, licensee or prospective employeeother Person transacting business with the Company to reduce or cease doing business with the Company, or in any way to interfere with the relationship between any such customer, salesperson, reseller, distributor, supplier, vendor, manufacturer, representative, agent, jobber, licensee or business relation, on the one hand, and the Company, on the other hand; provided, however, that such three (3) year period will be extended by and for the duration of any period of time during which Seller or any of its Affiliates or Representatives, is in violation of any provision of this Section 4.09(b). The foregoing restrictions shall include any Person who was an officer, director, contractor employee, customer, salesperson, reseller, distributor, supplier, vendor, manufacturer, representative, agent, jobber, licensee or other Person transacting business associate of with the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
at any time within six (iii6) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period months prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceableClosing Date.
(c) The restrictions contained parties hereto specifically acknowledge and agree that the remedy at law for any breach of the foregoing will be inadequate and that Buyer, in Sections 6addition to any other relief available to it, 7 shall be entitled to temporary and 8 are necessary for permanent injunctive relief without the protection necessity of proving actual damage or posting any bond whatsoever.
(d) Seller hereby acknowledges and agrees that, in view of the nature of the business and goodwill business objectives of Buyer in acquiring the Company and the consideration paid to Seller therefor, the scope of business, territorial and time limitations contained in this Section 4.09 are considered by reasonable and properly required for the Employee to be reasonable for such purposeadequate protection of Buyer and Company. The Employee agrees parties hereto intend that the covenants of this Section 4.09 be (i) enforceable to the maximum extent permitted by applicable law, and (ii) severable, and, if any reviewing court determines that any breach such covenant is unenforceable, invalid or of Sections 6excessive duration or scope, 7 or 8 will cause such determination shall not affect the Company substantial and irrevocable damage and thereforeenforceability of any other covenants herein; further, in the event of any such breach, in addition to such other remedies which may be availabledetermination, the Company shall have parties authorize such court to (i) reform the right unenforceable, invalid or excessive provisions, and (ii) impose such restrictions as reformed, as it deems reasonable. Buyer may, upon written notice to seek specific performance and injunctive relief without the consent of Seller, reduce the scope of the covenants of this Section 4.09 that apply to Seller and/or its Affiliates and Representatives, if Buyer deems such reduction in any court of competent jurisdiction, regardless of any statement scope is necessary to the contrary hereinenforce such covenants.
Appears in 1 contract
Restrictive Covenants. (a) During the term of this Agreement and You agree that for a period of one (1) year after 12 months following the termination or expiration thereofRetirement Date, the Employee you will not directly or indirectly:
without Xylem’s prior written consent, (i) solicit, induce, hire or attempt to solicit, induce or hire, any person who is employed as an individual proprietoremployee by Xylem or each of its direct and indirect wholly or partially owned subsidiaries and other affiliates worldwide (collectively, partner“Subsidiaries”) (Xylem, stockholdercollectively with the Subsidiaries (the “Xylem Entities”), officerto leave his, employee, director, joint venturer, investor, lender, her or in their employment with the Xylem Entities and/or to perform services of any kind for any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company)person, engage in the business of developingfirm or corporation, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or call-on, solicit or attempt to divert call-on or solicit, any of the Xylem Entities’ current customers, suppliers or clients, including those whom you called or who you solicited, or with whom you became acquainted while engaged as an employee of the Xylem Entities, and (iii) engage in, become affiliated with, or become employed by any business competitive with the Xylem Entities. For purposes of clarity and the avoidance of doubt, with respect to clause (iii) above, you are specifically permitted to engage with entities that are in the same or a similar business with the Xylem Entities as long as you do not receive monetary compensation in exchange for such engagement, and the activities performed or to take awaybe performed by you are engaged in solely for purposes of civic/community/social improvement or advancement. You further agree that you will not disparage or encourage or induce others to disparage the Company. For the purpose of this Agreement, “disparage” includes making comments or statements on social media or the internet, or to any person or entity including the press and/or media, investors, current or former employees, board members, business partners or customers of the Company or any entity with whom the Company has a business relationship, that would adversely affect in any manner (a) the conduct of the business of the Company (including any business plans or prospects) or (b) the reputation of the Company. A breach of this provision will be deemed to be a material breach of this Agreement. Nothing in this Agreement prohibits you from providing truthful information as required by law, including in a legal proceeding or a government investigation. The Company, including on behalf of its Subsidiaries, its corporate officers, and members of the Board of Directors, agrees not to slander, defame, disparage (as defined above) or otherwise injure your reputation. You agree to keep confidential and not disclose, without Xylem’s prior written consent, any proprietary information concerning matters relating to the business or patronage of any strategy of the clientsXylem Entities, customers including trade secrets and other intellectual property, products, services, methods of manufacture, pricing or accounts, or prospective clients, customers or accounts, business models. You acknowledge that money damages would not be a sufficient remedy for any breach by you of the covenants set forth herein. You accordingly consent that the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall may apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of enter an order finding that the Company has been irreparably harmed as a result of any such breach and are considered by the Employee to be reasonable granting injunctive relief without proof of actual damages as a remedy for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, and you further waive any requirement for the securing or posting of any bond in connection with any such remedy. Such remedies shall not be deemed to be the exclusive remedies for your breach of this section but shall be in addition to such all other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement available at law or equity to the contrary hereinCompany. 4.
Appears in 1 contract
Restrictive Covenants. (a) During the term period beginning on the Closing Date and ending on the fourth anniversary of the Closing Date (the “Restricted Period”), Member covenants and agrees not to, and shall cause his Affiliates not to, directly or indirectly and anywhere in the Restricted Territory, conduct, manage, operate, engage in, or have an ownership interest in any business or enterprise engaged in (i) the Business, or (ii) any activities that are otherwise similar to, or competitive with, the Business. Notwithstanding the provisions of this Agreement Section 5.2(a), the following activities shall not shall not be deemed to violate the provisions of this Section 5.2(a): (i) the beneficial ownership of less than five percent of the shares of stock or other equity interests of any corporation or other entity having a class of equity securities actively traded on a national securities exchange or over-the-counter market and not formed for a period the purpose of one circumventing this Agreement; or (1ii) year at any time after the termination or expiration thereoffirst anniversary of the Closing Date, Member performing, directly for his employer (but not for any other Person), services for the Employee will commissioning and qualification of equipment of such employer and validation of manufacturing and other processes of such employer, provided that such employer of Member is not engaged in the Business.
(b) During the Restricted Period, Member covenants and agrees not to, and shall cause his Affiliates not to, directly or indirectly:
(i) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruitcall-on, solicit or induce, or attempt to solicit or induce, any current Person which is or was a past, present or prospective employee, officer, director, contractor customer or other business associate relation of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any as of the clients, customers Closing Date for the provision of products or accounts, or prospective clients, customers or accounts, of services related to the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities Business or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceableany other manner that would otherwise interfere with business relationships between Parent and such customers and other business relations.
(c) The restrictions contained in Sections 6During the Restricted Period, 7 Member covenants and 8 are necessary for agrees not to, and shall cause his Affiliates not to, directly or indirectly, call-on, solicit or induce, or attempt to solicit or induce, any Person who was employed or engaged as an independent contractor by the protection Company on or at any time before the Closing Date, to leave the employ or engagement of the business and goodwill Company, the Surviving Company or their Affiliates (including Parent) for any reason whatsoever, nor shall Member offer or provide employment (except on behalf of the Company Company), either on a full-time basis or part-time or consulting basis, to any such Person.
(d) Member acknowledges and are considered by the Employee to be reasonable for such purpose. The Employee agrees that the provisions of this Section 5.2 are reasonable and necessary to protect the legitimate business interests of Parent and its acquisition of the Company. Member shall not contest that Xxxxxx’s remedies at law for any breach or threat of Sections 6breach by Member or any of Member’s Affiliates of the provisions of this Section 5.2 may be inadequate, 7 and that Parent shall be entitled to an injunction or 8 will cause injunctions to prevent breaches of the Company substantial provisions of this Section 5.2 and irrevocable damage to enforce specifically such terms and therefore, in the event of any such breachprovisions, in addition to such any other remedies remedy to which Parent may be availableentitled at law or equity. The restrictive covenants contained in this Section 5.2 are covenants independent of any other provision of this Agreement or any other agreement between the Parties hereunder and the existence of any claim which Member may allege against Parent under any other provision of the Agreement or any other agreement will not prevent the enforcement of these covenants.
(e) If any of the provisions contained in this Section 5.2 shall for any reason be held to be excessively broad as to duration, scope, activity or subject, then such provision shall be construed by limiting and reducing it, so as to be valid and enforceable to the Company shall have extent compatible with the right to seek specific performance and injunctive relief in any applicable Law or the determination by a court of competent jurisdiction, regardless of any statement to the contrary herein.
Appears in 1 contract
Samples: Merger Agreement (Transcat Inc)
Restrictive Covenants. a. Each Party agrees that, without the express prior written consent of the other Party, during the Initial Term and all Renewal Terms thereafter and for the twelve (a12)-month period following thereafter, at any time or for any reason, each Party shall not, directly or indirectly, (i) During induce customers, vendors, clients, licensors, licensees, suppliers, agents, cultivators or other persons under contract or otherwise associated or doing business with the term other Party and/or its affiliates to reduce or alter any such association or business with such other Party and/or its affiliates or otherwise interfere in the business relationship of this Agreement any such persons and such other Party and/or its affiliates, and/or (ii) solicit or induce any employee, independent contractor, consultant, or other person in the employment or service of the other Party and/or its affiliates, at the time of such solicitation or inducement, in any case to (1) terminate such employment or service, and/or (2) accept employment, or enter into any consulting or other service arrangement, with any person other than such other Party and/or its affiliates.
b. Lifted agrees that, without the express prior written consent of Xxxxxx, from and during the Restricted Period, at any time or for any reason, Lifted shall not, directly or indirectly, by itself or through others, manufacture, market, distribute, promote or sell, or assist any other person to manufacture, market, distribute, promote or sell any Restricted Products (as defined herein) within the Territory. “Restricted Products” shall mean any type of pre-rolled joints, whether or not made from hemp or cannabis, and whether or not containing any amounts of Delta-8 Tetrahydrocannabinol or Delta-9 Tetrahydrocannabinol (i.e., THC). “Restricted Period” means the first day of the month following first month in which $1,500,000 in Aggregate Product Revenue from sales of pre-rolled joints is achieved and thereafter for so long as $9,000,000 in Aggregate Product Revenue from sales of pre-rolled joints is achieved in each six (6) month period during the Term. Notwithstanding the foregoing, Lifted shall be entitled to sell all existing Restricted Products within its inventory for a period of one not to exceed sixty (160) year after days from the termination or expiration thereof, the Employee will not directly or indirectly:
(i) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) start of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the CompanyRestricted Period.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary herein.
Appears in 1 contract
Restrictive Covenants. (a) During the term of this Agreement and for For a period of one five (15) year after years commencing on the termination or expiration thereofClosing Date (the “Restricted Period”), the Employee will Seller shall not, and shall not permit any of its Affiliates or directors and officers (acting in their capacity as such), to, directly or indirectly:
, (i) engage in or assist others in engaging in the Business anywhere in the world; (ii) have an interest in any Person that engages in the Business in any capacity, including as an individual proprietor, a partner, stockholdershareholder, officermember, manager, employee, directorprincipal, joint ventureragent, investoradvisor, lendertrustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between the Business and any customers or suppliers of the Business as of the Closing Date. Notwithstanding the foregoing, Seller may own, directly or indirectly, solely as a passive investment, securities of any Person traded on any national securities exchange if the Seller is not a controlling Person of, or in any other capacity whatsoever a member of a group which controls, such Person and does not, directly or indirectly (other than as the holder of not more than one with its Affiliates), own two percent (12%) or more of any class of securities of such Person.
(b) During the Restrictive Period, the Seller shall not, and shall not permit any of its Affiliates or directors and officers (acting in their capacity as such) to, directly or indirectly, hire or solicit any employee, independent contractor, or consultant of the total outstanding stock Business, or encourage any such Person to leave such capacity or hire any such Person who has left such capacity. Notwithstanding the foregoing, (i) the placement of general advertisements that may be targeted to a publicly held company)particular geographic or technical area, engage in the business but are not targeted specifically towards employees, independent contractors, or consultants of developing, producing, marketing or selling services any of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
Companies shall not be deemed to be a breach of this Section 6.12 and (ii) hirethe restrictions in this Section 6.12(b) shall not apply to soliciting or hiring any person twelve (12) months following the termination of employment of any such person for any reason, engagewhether by the Buyer, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate or any of their employment withAffiliates, or otherwise cease their business relationship withso long as such termination is not the result of a breach of this Section 6.12.
(c) During the Restricted Period, the Company; or
Seller shall not, and shall not permit any of its respective Affiliates or directors and officers (iiiacting in their capacity as such) to, directly or indirectly, (i) solicit, divert entice, divert, or take away, or attempt to solicit, entice, divert or to take away, any Person who as of the Closing Date (x) is a customer, vendor, or supplier, or otherwise has a business relationship with the Companies or the Business or (y) is seeking to establish a business relationship with the Companies or the Business for purposes of reducing or diverting their current or future business or patronage of any of services from the clients, customers Companies or accountsthe Business, or prospective clients, customers (ii) take any action that is designed or accounts, intended to have the effect of discouraging any Person described in clause (x) from maintaining the Company which were contacted, solicited same business relationship with the Companies or served by the Employee while employed by Business after the CompanyClosing Date as it maintained with the Companies prior to the Closing Date.
(ivd) For During the purposes of these restrictionsRestricted Period, the word “prospective” Seller shall apply refrain from, and shall cause its respective Affiliates, directors and officers to refrain from, in any individual manner, directly or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiringindirectly, solicitationall conduct, recruiting, diversion oral or otherwise. In addition a “current” employee shall include , including in social media, that disparages or damages the reputation, goodwill, or standing in the community of the Buyer, the Companies or any employee who was employed by Person known to the Company within Seller to be an Affiliate, director or officer of the three Buyer, provided, however, this paragraph does not apply to: (3i) months preceding communications between the Seller and any potential solicitation Governmental Authority, or hiringbetween the Seller and Buyer; or (ii) lawful pleadings, testimony or filings in any arbitration or legal proceeding.
(be) If The Seller acknowledges that a breach or threatened breach of this Section 6.12 could give rise to irreparable harm to the Buyer, for which monetary damages may not be an adequate remedy, and the Seller hereby agrees that in the event of a breach or a threatened breach by the Seller of any such obligations, the Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to seek equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction. In the event of a violation or breach by the Seller, or any of its Affiliates or directors and officers (acting in their capacity as such), of any restriction set forth in this Section 6 is found 6.12 the term of the Restricted Period applicable to such restriction shall be extended by any court of competent jurisdiction to be unenforceable because it extends for too long a period equal to the duration of time such violation or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceablebreach.
(cf) The restrictions contained in Sections 6Seller hereby acknowledges that the geographic boundaries, 7 scope of prohibited activities and 8 the duration of the provisions of this Section 6.12 are reasonable and are no broader than are necessary for to protect the protection legitimate business interests of the business Buyer, including the ability of the Buyer to realize the benefit of its bargain under this Agreement and to enjoy the goodwill of the Company Business, and are considered that such restrictions constitute a material inducement to the Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the Employee event that any covenant contained in this Section 6.12 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be reasonable for deemed reformed, in such purposejurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The Employee agrees that any breach of Sections 6, 7 covenants contained in this Section 6.12 and each provision hereof are severable and distinct covenants and provisions. The invalidity or 8 will cause the Company substantial and irrevocable damage and therefore, in the event unenforceability of any such breachcovenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, in addition to and any such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief invalidity or unenforceability in any court of competent jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction, regardless of any statement to the contrary herein.
Appears in 1 contract
Samples: Securities Purchase Agreement (Wireless Telecom Group Inc)
Restrictive Covenants. (a) During the term of this Agreement and for a period of one (1) year after the termination or expiration thereof, the Employee 2.1 The Executive hereby undertakes that he will not during the Restricted Period without the prior written consent of the Company (such consent not to be unreasonably withheld) whether by himself, through his employees or agents or otherwise howsoever and whether on his own behalf or on behalf of any other person, firm, company or other organisation, directly or indirectly:
(ia) as an individual proprietorin competition with the Company within the Restricted Area, partnerbe employed or engaged or otherwise interested in the business of researching into, stockholderdeveloping, officermanufacturing, employeedistributing, selling, supplying or otherwise dealing with Restricted Goods or Restricted Services;
(b) in competition with the Company, solicit business from or canvass any Customer or Prospective Customer if such solicitation or canvassing is in respect of Restricted Goods or Restricted Services;
(c) in competition with the Company, accept orders for Restricted Goods or Restricted Services from any Customer or Prospective Customer;
(d) solicit or induce or endeavour to solicit or induce any person who on the Termination Date was a director, joint venturermanager, investor, lender, salesman or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) consultant of the total outstanding stock Company with whom the Executive had dealings during his employment to cease working for or providing services to the Company, whether or not any such person would thereby commit a breach of a publicly held company), contract;
(e) employ or otherwise engage in the business of researching into, developing, producingmanufacturing, marketing distributing, selling, supplying or selling services of otherwise dealing with Restricted Goods or Restricted Services any person who was during the kind twelve months preceding the Termination Date employed or type developed or being developed, produced, marketed or sold otherwise engaged by the Company while and who by reason of such employment or engagement is in possession of any trade secrets or Confidential Information relating to the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company or who has acquired influence over its Customers and Prospective Customers (but so that references to terminate their employment with, or otherwise cease their business relationship with, the Company; orExecutive shall be replaced by references to the relevant employee).
2.2 The Executive hereby undertakes with the Company that he will not at any time:
(iiia) solicit, divert after the Termination Date engage in any trade or take away, or attempt to divert or to take away, the business or patronage of be associated with any of person, firm or company engaged in any trade or business using the clients, customers name Aramex International Limited or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, incorporating the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.Aramex;
(b) If after the termination of the Employment in the course of carrying on any restriction set forth trade or business, claim, represent or otherwise indicate any present association with the Company or for the purpose of carrying on or retaining any business or custom, claim, represent or otherwise indicate any past association with the Company to its detriment.
2.3 While the restrictions in this Section 6 is found clause 2 (on which the Executive has had the opportunity to take independent advice, as the Executive hereby acknowledges) are considered by any court of competent jurisdiction the parties to be unenforceable because it extends for too long a period of time or over too great a range of activities or reasonable in too broad a geographic areaall the circumstances, it is agreed that if any such restrictions, by themselves, or taken together, shall be interpreted adjudged to extend only over go beyond what is reasonable in all the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary circumstances for the protection of the business and goodwill legitimate interests of the Company and are considered by but would be adjudged reasonable if part or parts of the Employee to be reasonable for wording thereof were deleted the relevant restriction or restrictions shall apply with such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which deletion(s) as may be available, the Company shall have the right necessary to seek specific performance make it or them valid and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary hereineffective.
Appears in 1 contract
Restrictive Covenants. (a) During the term of this Agreement and for For a period of one two (12) year years after the termination or expiration thereofdate of this Agreement, the Employee will not Seller and Pardos agree that neither of them, nor any Seller Affiliate will, directly or indirectly:
(i) , either individually or as an individual proprietoremployee, agent, partner, stockholder, officer, employeeprincipal, director, joint venturershareholder, investorconsultant, lender, lender or in any other capacity whatsoever whatsoever, (other than as i) participate or engage in, or own or have any interest in or assist in any way or capacity any Person that is engaged in, any business that is competitive with the holder Protected Business within the Business Territory, (ii) entice, induce, or in any manner influence any person who is an employee of the Protected Business to leave such service or hire any such person, (iii) contact or solicit any Person within the Business Territory that is or at any time within the one year period immediately prior to the date of this Agreement was a customer of TDI for the purpose of providing products, services or business competitive with that provided by the Protected Business, or provide any such products, services or business to any such Person, (iv) request or advise any suppliers, customers or accounts of the Protected Business to withdraw, curtail or cancel any business that is placed with the Protected Business, (v) use or disclose, or cause to be used or disclosed, any secret, confidential or proprietary information of the Protected Business, regardless of the fact that Seller and/or Pardos or any Seller Affiliate may have participated in the development of that information, or (vi) make any disparaging remarks about the Protected Business or about Buyer or its affiliates, their employees or officers, or their services, practices or conduct. Nothing herein shall prohibit Seller and/or Pardos or any Seller Affiliate from being a passive owner of not more than one percent (1%) 5% of the total outstanding stock of a corporation, which is publicly held company)traded, engage so long as neither Seller nor Pardos nor such Seller Affiliate has any active participation in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringsuch corporation.
(b) If any restriction The restrictive covenant set forth in Section 2(a)(i) of this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it Agreement shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, not apply in the event that TDI terminates the Consulting Agreement other than for “Cause” (as defined in Section 5(a) of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary hereinConsulting Agreement).
Appears in 1 contract
Samples: Noncompetition and Nondisparagement Agreement (EWaste Systems, Inc.)
Restrictive Covenants. (a) During The Principal Stockholder shall not (and shall cause its Affiliates not to), during the term of this Agreement and for a period of one (1) year after the termination or expiration thereofRestricted Period, the Employee will not directly or indirectly:
, for itself or on behalf of or in conjunction with any other Person, engage in, invest in or otherwise participate in (i) whether as an individual proprietorowner, partner, stockholder, officer, employee, director, joint venturer, investor, lender, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor manager, consultant, independent contractor, agent, partner or advisor) any business that competes with the Business (a “Restricted Business”); provided, that the Principal Stockholder and its Affiliates shall not be restricted or prohibited by this Section 6.06(a) in any way (i) in conducting any business currently conducted by the Principal Stockholder and its Affiliates or (ii) unless (A) one of such Persons holds or has a right to hold or nominate for election an individual to hold a seat on the board of directors (or other business associate similar governing body) of such Restricted Business and (B) such Persons, in the aggregate, own in excess of 19.9% percent of the Company to terminate their employment withvoting securities of such Restricted Business; provided further, however, that nothing in this Section 6.06(a) shall restrict or prohibit the Principal Stockholder or any of its Affiliates from engaging in, investing in or otherwise cease their participating in (whether as an owner, employee, officer, director, manager, consultant, independent contractor, agent, partner or advisor) any business relationship withthat has a subsidiary, division, group, franchise or segment that is engaged in a Restricted Business, so long as for the most recent fiscal year ending prior to the date of such engagement, investment or participation, the Company; or
revenues derived from the Restricted Business were less than twenty percent (iii20%) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, total consolidated revenues of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringsuch business.
(b) If The Seller shall, and shall cause its Affiliates to, maintain the confidentiality of and not use for any restriction set forth purpose (other than monitoring its investment in this Section 6 is found by the Purchaser after the Closing) any court Confidential Information (as defined in the Confidentiality Agreement) of competent jurisdiction the Company during the Restricted Period in accordance with the Confidentiality Agreement as if the Seller were the “Receiving Party” (as defined in the Confidentiality Agreement) of such information thereunder; provided, that the Seller and its Affiliates shall not be prohibited from disclosing or using any such Confidential Information in connection with and to be unenforceable because it extends the extent reasonably necessary for too long a period the Seller’s and its Affiliates’ (i) preparation of time or over too great a range financial statements, (ii) preparation and filing of activities or in too broad a geographic area, it shall be interpreted to extend only over Tax Returns and other Tax filings and (iii) compliance with applicable securities Laws (including the maximum period rules of time, range of activities or geographic area as to which it may be enforceablethe NYSE).
(c) The Principal Stockholder shall not (and shall cause its Affiliates not to), during the Restricted Period, directly or indirectly, for itself or on behalf of or in conjunction with any other Person, (i) solicit, hire or engage the services of (or assist or encourage any other Person to solicit, hire or engage) any employee or independent contractor of any of the Purchaser, the Company, or any of the Purchaser’s or the Company’s Subsidiaries (each, a “Restricted Entity”), in each case whose base compensation (or annual fees) from the Company or the Purchaser or its Subsidiaries (after the Closing) exceeds $150,000, other than by general public advertisement or other such general solicitation (including through the use of third party recruiters) not specifically targeted at any such Person, and other than any such employee or independent contractor who has terminated its relationship with (or been terminated by) a Restricted Entity more than three (3) months prior to any such solicitation, (ii) induce or request any customer of any Restricted Entity to reduce, cancel or terminate its business with such Restricted Entity or (iii) solicit or accept business from any customer of any Restricted Entity in connection with a Restricted Business.
(d) If, at the time of enforcement of the covenants contained in this Section 6.06 (the “Restrictive Covenants”), a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the Parties agree that the maximum duration, scope or area reasonable under such circumstances shall be substituted for the stated duration, scope or area and that the court shall be allowed and directed to revise the restrictions contained herein to cover the maximum duration, scope and area permitted by Law. The Seller has consulted with legal counsel regarding the Restrictive Covenants and based on such consultation has determined and hereby acknowledges that the Restrictive Covenants are reasonable in Sections 6terms of duration, 7 scope and 8 area restrictions and are necessary for to protect the protection of the business and goodwill of the Company’s business and the substantial investment in the Company and are considered made by the Employee to be reasonable for such purposePurchaser hereunder. The Employee Seller and the Principal Stockholder each further acknowledges and agrees that the Restrictive Covenants are being entered into by it in connection with the sale by the Seller and the Principal Stockholder of the Membership Interests and the goodwill of the Company’s business pursuant to this Agreement and not directly or indirectly in connection with the Seller’s relationship with the Company.
(e) If the Seller, the Principal Stockholder or any Affiliate, officer, director, employee, representative or agent of the Seller or the Principal Stockholder breaches, or threatens to commit a breach of, any of Sections 6the Restrictive Covenants (in each case on behalf of the Principal Stockholder or any of its Affiliates), 7 or 8 will cause the Purchaser and the Company substantial and irrevocable damage and therefore, in the event of any such breachshall, in addition to such and without limiting any other remedies which may be availableremedy available at law or in equity, the Company shall have the right and remedy to seek specific performance and injunctive relief in have the Restrictive Covenants specifically enforced by any court of competent jurisdiction, regardless it being agreed that any breach or threatened breach of the Restrictive Covenants would cause irreparable injury to the Company and that money damages would not provide an adequate remedy to the Company.
(f) In the event of any statement breach or violation by the Seller, the Principal Stockholder or any Affiliate, officer, director, employee, representative or agent of the Seller or the Principal Stockholder of any of the Restrictive Covenants (in each case on behalf of the Principal Stockholder or any of its Affiliates), the time period of such covenant shall be tolled until such breach or violation is resolved.
(g) The Principal Stockholder acknowledges that it has carefully read and considered the provisions of this Section 6.06. The Principal Stockholder acknowledges that it has received and will receive sufficient consideration and other benefits to justify the contrary hereinrestrictions in this Section 6.06. The Principal Stockholder also acknowledges and understands that these restrictions are reasonably necessary to protect the interests of the Purchaser, including protection of the goodwill acquired, and the Principal Stockholder acknowledges that such restrictions will not prevent it from conducting businesses that are not included in the Restricted Business set forth in this Section 6.06 during the periods covered by the restrictive covenants set forth in this Section 6.06. The Principal Stockholder also acknowledges that the transactions contemplated by this Agreement constitute full and adequate consideration for the execution and enforceability of the restrictions set forth in this Section 6.06.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Tenneco Inc)
Restrictive Covenants. (a) During the term period beginning on the Closing Date and ending on the fifth anniversary of the Closing Date (the “Restricted Period”), each Seller Party covenants and agrees, it shall, and shall procure its Affiliates, not to, directly or indirectly and anywhere in the Restricted Territory, conduct, manage, operate, engage in, or have an ownership interest in any business or enterprise engaged in (i) the Business, or (ii) any activities that are otherwise similar to, or competitive with, the Business. Notwithstanding the provisions of this Agreement and for a period of one (1) year after the termination or expiration thereofSection 5.2(a), the Employee will beneficial ownership of less than five percent of the shares of stock or other equity interests of any corporation or other entity having a class of equity securities actively traded on a national securities exchange or over-the-counter market and not formed for the purpose of circumventing this Agreement shall not be deemed to violate the provisions of this Section 5.2(a).
(b) During the Restricted Period, each Seller Party covenants and agrees, it shall, and shall procure its Affiliates, not to, directly or indirectly:
(i) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruitcall-on, solicit or induce, or attempt to solicit or induce, any current Person which is or was a past, present or prospective employee, officer, director, contractor customer or other business associate relation of the Companies or the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any Subsidiary as of the clientsClosing Date for the provision of products or services directly related to, customers or accountsand sold, or prospective clients, customers or accounts, in the operation of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceableBusiness.
(c) During the Restricted Period, each Seller Party covenants and agrees, it shall, and shall procure its Affiliates, not to, directly or indirectly, call-on, solicit or induce, or attempt to solicit or induce, any Person who was employed or engaged as an independent contractor by any Company or Company Subsidiary on or at any time before the Closing Date, to leave the employ or engagement of any Company or Company Subsidiary for any reason whatsoever, nor shall any Seller Party offer or provide employment , either on a full-time basis or part-time or consulting basis, to any such Person (unless approved in writing by Buyer).
(d) The restrictions contained in Sections 6, 7 Seller Parties acknowledge and 8 agree that the provisions of this Section 5.2 are reasonable and necessary for to protect the protection legitimate business interests of the business Buyer and goodwill its acquisition of the Company and are considered by Equity Interests. None of the Employee to be reasonable Seller Parties shall contest that Buyer’s remedies at law for such purpose. The Employee agrees that any breach or threat of Sections 6breach by any Seller Party of the provisions of this Section 5.2 may be inadequate, 7 and that Buyer shall be entitled to an injunction or 8 will cause injunctions to prevent breaches of the Company substantial provisions of this Section 5.2 and irrevocable damage to enforce specifically such terms and therefore, in the event of any such breachprovisions, in addition to such any other remedies remedy to which Buyer may be availableentitled at law or equity. The restrictive covenants contained in this Section 5.2 are covenants independent of any other provision of this Agreement or any other agreement between the Parties hereunder and the existence of any claim which any Seller may allege against Buyer under any other provision of the Agreement or any other agreement will not prevent the enforcement of these covenants.
(e) If any of the provisions contained in this Section 5.2 shall for any reason be held to be excessively broad as to duration, scope, activity or subject, then such provision shall be construed by limiting and reducing it, so as to be valid and enforceable to the Company shall have extent compatible with the right to seek specific performance and injunctive relief in any applicable Law or the determination by a court of competent jurisdiction, regardless of any statement to the contrary herein.
Appears in 1 contract
Restrictive Covenants. (a) During the term of this Agreement Grantee hereby covenants and for a period of one (1) year after the termination or expiration thereofagrees that Grantee will not, the Employee will not directly or indirectly:
(i) , whether as an individual proprietorprincipal, partneragent, stockholdertrustee or through the agency of any corporation, officerpartnership, employee, director, joint venturer, investor, lender, association or in any other capacity whatsoever agent (other than as the holder of not more than one five percent (15%) of the total outstanding stock of any company the securities of which are traded on a publicly held companyregular basis on recognized securities exchanges for the ___-year period immediately following the termination of Grantee’s employment or service under any circumstances (the "Non-competition Period"), engage in the business of developingfor any reason, producing, marketing serve as or selling services of the kind be a consultant to or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, directoragent, contractor director or other business associate owner of another entity engaged in (or preparing to engage in) cruises, with a minimum fleet size of 1,000 berths (including ships under construction or publicly announced to be built), or cruise related businesses of any such entity. Xxxxxxx further agrees that during the Non-competition Period, he or she shall not: (i) employ or seek to employ any person who is then employed or retained by the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
its Affiliates (iii) solicit, divert or take away, who was so employed or attempt to divert or to take away, the business or patronage of retained at any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact time within the twelve six (6) month period prior to the last day of Grantee’s employment or service with the Company); or (ii) solicit, induce, or influence any potential hiringproprietor, solicitationpartner, recruitingstockholder, diversion lender, director, officer, employee, joint venturer, investor, consultant, agent, lessor, supplier, customer or otherwise. In addition any other person or entity which has a “current” employee shall include any employee who was employed by business relationship with the Company within or its Affiliates at any time during the three (3) months preceding Non-competition Period, to discontinue or reduce or modify the extent of such relationship with the Company or any potential solicitation or hiring.
(b) If any restriction of its Affiliates. Xxxxxxx has carefully read and considered the provisions of this Agreement and agrees that the restrictions set forth in this Section 6 is found by any court are fair and reasonable and are reasonably required for the protection of competent jurisdiction to be unenforceable because it extends for too long a period the interests of time or over too great a range of activities or in too broad a geographic areathe Company, it shall be interpreted to extend only over the maximum period of timeits officers, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6directors, 7 shareholders, and 8 are necessary other employees and for the protection of the business and goodwill of Company. Xxxxxxx acknowledges that he or she is qualified to engage in businesses other than that described in the first paragraph of this Schedule B. It is the belief of the parties, therefore, that the best protection that can be given to Company and are considered that does not in any way infringe upon the rights of Grantee to engage in any unrelated businesses is to provide for the restrictions described above. In view of the substantial harm which would result from a breach by Grantee of this Schedule B, the Employee parties agree that the restrictions contained herein shall be enforced to be reasonable for such purposethe maximum extent permitted by law. The Employee agrees In the event that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may said restrictions shall be available, the Company shall have the right to seek specific performance and injunctive relief in held unenforceable by any court of competent jurisdiction, regardless the parties hereto agree that it is their desire that such court shall substitute a reasonable judicially enforceable limitation in place of any statement to limitation deemed unenforceable and that as so modified, the contrary hereincovenant shall be as fully enforceable as if it had been set forth herein by the parties.
Appears in 1 contract
Samples: Performance Based Restricted Shares Agreement (Royal Caribbean Cruises LTD)
Restrictive Covenants. (a) During For a period of three (3) years from the term Closing Date, without the prior written consent of the Purchaser, as to any Transferred Employee (a “Restricted Person”), each of the Company and the Parent agree that it shall not, and that it shall cause its Affiliates not to, directly or indirectly, either (i) solicit for employment or hire any Restricted Person (in each case, irrespective of whether that Restricted Person is then employed by the Purchaser or its Affiliates), or (ii) otherwise induce any Restricted Person to discontinue its, his or her employment or business relationship with the Business, the Purchaser or its Affiliates; provided, that the Parent and its Affiliates shall not be precluded and nothing in this Section 7.11(a) shall preclude the Parent or its Affiliates from soliciting or hiring, or taking any other action with respect to any individual (A) whose employment was terminated by the Purchaser or its Affiliates other than due to a voluntary resignation by that individual or (B) whose employment with the Purchaser or its Affiliates ceased due to voluntary resignation at least six (6) months prior to the commencement of employment discussions between such individual and the Parent or its Affiliates and provided, further, that the Parent and its Affiliates shall not be restricted from engaging in general solicitations or advertising not targeted at Restricted Persons.
(b) As a material inducement to the Purchaser to enter into this Agreement and consummate the transactions contemplated hereby, each Seller agrees that commencing on the Closing Date for a period of one three (13) year after years thereafter, without the termination or expiration thereofprior written consent of the Purchaser, it shall not, and it shall cause its Affiliates not to, do any of the Employee will not directly or indirectlyfollowing:
(i) as an individual proprietorengage in, partner, stockholder, officer, employee, director, joint venturer, investor, lenderadvise or assist any other person or business to engage in, or acquire or own an interest in (in whole or in part) any Restricted Business in (w) the world, (x) the United States, (y) in any other capacity whatsoever (other than as market or geographic area where the holder of not more than one percent (1%) Parent or the Company operates the Business or offers or provides any products or services related to the Business at the time of the total outstanding stock Closing, and (z) in any market or geographic area where the Purchaser, Purchaser Parent, or any of a publicly held company), engage in their respective Affiliates operates the business of developing, producing, marketing Business or selling offers or provides any products or services of related to the kind or type developed or being developed, produced, marketed or sold by Business after the Company while the Employee was employed by the CompanyClosing; or
(ii) hiresolicit, engagedivert or take away the business or patronage of any individual, recruit, solicit corporation or induceother entity which is at the time of the Closing, or attempt to inducewhich was in the two-year period prior the Closing, any current a client, customer or prospective employee, officer, director, contractor or other business associate account of the Company to terminate their employment with, Parent or otherwise cease their business relationship with, the Company; or
(iii) solicitinduce, divert encourage or take awayassist any client, customer, or attempt vendor of the Business to divert reduce, terminate, restrict or to take awayotherwise materially and adversely alter its business relationship with the Purchaser, the business Purchaser Parent, or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceabletheir Affiliates.
(c) The restrictions Each Seller hereby expressly acknowledges that the covenants contained in Sections 6, 7 this Section 7.11 are integral to the purchase of the Purchased Assets and 8 are necessary for the Business by the Purchaser and that without the protection of such covenants, the business Purchaser would not have entered into this Agreement. Each Seller hereby further acknowledges that money damages will be impossible to calculate and goodwill may not adequately compensate the Purchaser and/or its Affiliates in connection with an actual or threatened breach of the Company and are considered by the Employee to be reasonable for such purposeprovisions of this Section 7.11. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be availableAccordingly, the Company Purchaser shall have the right be entitled to seek equitable relief, including a temporary restraining order, an injunction, specific performance and injunctive any other relief in any that may be available from a court of competent jurisdiction. In addition, regardless the Purchaser shall be entitled to pursue any other available remedies at law or equity, including the recovery of money damages, in respect of the actual breach of the provisions of this Section 7.11.
(d) In the event that any covenant contained in this Section 7.11 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 7.11 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any statement to such covenant or provision as written shall not invalidate or render unenforceable the contrary hereinremaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
Appears in 1 contract
Restrictive Covenants. (a) During You hereby agree that, during (i) the term six-month period following a termination of your employment with the Company that entitles you to receive severance benefits under this Agreement or a written agreement with or policy of the Company or (ii) the twelve-month period following a termination of your employment with the Company that does not entitle you to receive such severance benefits (the period referred to in either clause (i) or (ii), the "Restricted Period"), you shall not undertake any employment or activity (including, but not limited to, consulting services) with a Competitor (as defined below) in any geographic area in which the Company or any of its affiliates operates (the "Market Area"), where the loyal and complete fulfillment of the duties of the competitive employment or activity would call upon you to reveal, to make judgments on or otherwise use or disclose any confidential business information or trade secrets of the business of the Company or any of its affiliates to which you had access during your employment with the Company. If you take a position as a vice president (or higher position) or as a director of a Competitor it will be presumed for purposes of this Agreement that the loyal and for a period complete fulfillment of one (1) year after the termination your duties would require you to use such information and you would therefore be deemed to be in breach of this provision. For purposes of this Section, "Competitor" shall refer to any health maintenance organization or expiration thereof, the Employee will not directly insurance company that provides managed health care or indirectly:
(i) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lender, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling related services of the kind or type developed or being developed, produced, marketed or sold similar to those provided by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringits affiliates.
(b) If In addition, you agree that, during the applicable Restricted Period following termination of your employment with the Company, you shall not, directly or indirectly, (A) solicit, interfere with, hire, offer to hire or induce any restriction set forth in this Section 6 person, who is found by or was an employee of the Company or any of its affiliates at the time of such solicitation, interference, hiring, offering to hire or inducement, to discontinue his/her relationship with the Company or any of its affiliates or to accept employment by, or enter into a business relationship with, you or any other entity or person or (B) solicit, interfere with or otherwise contact any customer or client of the Company or any of its affiliates.
(c) It is hereby further agreed that if any court of competent jurisdiction shall determine that the restrictions imposed in this Section are unreasonable (including, but not limited to, the definition of Market Area or Competitor or the time period during which this provision is applicable), the parties hereto hereby agree to any restrictions that such court would find to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over reasonable under the maximum period of time, range of activities or geographic area as to which it may be enforceablecircumstances.
(cd) The restrictions You also acknowledge that the services to be rendered by you to the Company are of a special and unique character, which gives this Agreement a peculiar value to the Company or any of its affiliates, the loss of which may not be reasonably or adequately compensated for by damages in an action at law, and that a material breach or threatened breach by you of any of the provisions contained in Sections 6, 7 and 8 are necessary for this Section during the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 Restricted Period will cause the Company substantial and irrevocable damage and therefore, in or any of its affiliates irreparable injury. You therefore agree that the event of any such breachCompany may be entitled during the Restricted Period, in addition to such the remedies set forth above in this Section and any other remedies which may be availableright or remedy, to a temporary, preliminary and permanent injunction, without the Company shall have necessity of proving the right to seek specific performance and injunctive relief in any court inadequacy of competent jurisdiction, regardless monetary damages or the posting of any statement to the contrary hereinbond or security, enjoining or restraining you from any such violation or threatened violations.
Appears in 1 contract
Restrictive Covenants. In consideration of the Purchase Price received by the Sellers under this Agreement, the Merrell Trust and the Principals hereby covenant and agree as follows:
(a) During the term of this Agreement period commencing on the Closing Date and for a period of one ending on the six (16) year after anniversary of the termination or expiration thereofClosing Date (the “Restricted Period”), neither the Employee will not Merrell Trust nor any Principal shall, directly or indirectly, do any of the following:
(i) engage or invest in, own, manage, operate, finance, control, be employed by, render services or advice or other aid to, or be connected or associated with in any capacity, including without limitation as an individual proprietorindividual, partner, stockholdershareholder, officer, employee, director, joint venturer, investor, lender, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employeemanager, officer, director, contractor employee, principal, agent, consultant, advisor, developer or other business associate of the Company to terminate their employment withtrustee, any Person or enterprise that engages in, or otherwise cease their business relationship withplans to become engaged in, any Competing Business within the Company; orCovered Area;
(iiiii) induce or solicit, divert or take away, or attempt to divert induce or to take awaysolicit, the business or patronage of any of the clients, customers or accountsPerson that is, or prospective clientswas during the two (2) year period ending on the Closing Date, customers a customer, supplier or accounts, business relation of the Company which were contacted, solicited Entities or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictionsBusiness to cease doing business with Buyer, the word “prospective” shall apply to Company Entities or Business or any individual of their respective successors or entity Affiliates, in any way interfere with which the relationship between or among Buyer, the Company has had substantive contact within Entities, the twelve month period prior to Business or any potential hiringof their respective successors or Affiliates and any such customer, solicitationsupplier or business relation, recruitingor solicit the business of any such customer, diversion supplier or otherwise. In addition a “current” employee shall include business relation for any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringCompeting Business.
(b) If During the Restricted Period, neither the Merrell Trust nor any restriction set forth Principal shall, directly or indirectly or by assisting others, induce or solicit, or attempt to induce or solicit, any employee or independent contractor of Buyer, the Company Entities, the Business or any of their respective successors or Affiliates who was an employee or independent contractor of the Company Entities or the Business at any time during the two (2) year period ending on the Closing Date to leave the employ or service of Buyer, the Company Entities, the Business or any of their respective successors or Affiliates, in this Section 6 is found by any court way interfere with the relationship between or among Buyer, the Company Entities, the Business or any of competent jurisdiction their respective successors or Affiliates and any such employee or independent contractor, or solicit, offer employment to, otherwise attempt to be unenforceable because it extends for too long a period of time hire, employ or over too great a range of activities otherwise engage as an employee, independent contractor or in too broad a geographic areaotherwise, it shall be interpreted to extend only over the maximum period of time, range of activities any such employee or geographic area as to which it may be enforceableindependent contractor.
(c) The restrictions contained in Sections 6As used herein, 7 and 8 are necessary for the protection of term “Competing Business” shall mean the business of providing: (i) hospice care and goodwill of the Company skilled health services and are considered by the Employee to be reasonable for such purpose(ii) home care and unskilled home health services. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be availableAs used herein, the Company term “Covered Area” shall have mean the right to seek specific performance and injunctive relief in any court States of competent jurisdiction, regardless of any statement to the contrary hereinNew Mexico.
Appears in 1 contract
Restrictive Covenants. (a) During 16.1 The Employee hereby covenants with the term Company that he shall not during the period of this Agreement his employment hereunder and for a period of one (1) year month after the termination or expiration thereofof this Agreement for whatever reason, the Employee will not whether directly or indirectly, on his own account or in conjunction with or on behalf of any person or entity:
(i1) as an individual proprietorsolicit or entice away from the Company, partneror employ or cause any third party, stockholderto employ or engage any person who has been a client, officeragent, employee, directorcontractor, joint venturer, investor, lendersub-contractor, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) supplier of the total outstanding stock Company at any time within a period of a publicly held company)twelve (12) months prior to the termination of this Agreement, engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; orand
(ii2) hire, engage, recruit, solicit or induceinduce or otherwise interfere with any person or entity who is or has been a client, agent, contractor, sub-contractor, supplier or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment withcease dealing with the Company or to restrict or reduce its volume, extent or duration of trade, dealing or transaction with the Company, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert introduce or take away, cause to be introduced such person or attempt entity to divert or to take away, the any business or patronage activity which is in competition or otherwise inconsistent with the interest of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
16.2 During the term of this Agreement and during the period commencing with the date of termination of this Agreement and ending on the date one (iv1) For the purposes of these restrictionsmonth later, the word “prospective” Employee shall apply not, in Hong Kong, whether directly or indirectly, on his account or in conjunction with or on behalf of any entity or business, whether through himself or any company or business where he directly or indirectly holds any ownership or beneficial interests (save and except for ownership or beneficial interests in any listed company, whether listed in or outside Hong Kong, provided that his ownership or beneficial interests in the said listed company does not exceed 1% of the total issued share capital of that said listed company) or in which he is a Xxxxxx 000-000, 0/X, XXXX Xxxxx, Three Garden Road, Central, Hong Kong director or partner or proprietor, be employed by, be involved in the activities or business of, or provide services (unless with the consent of the Company) for related activities of which the Employee is engaged in during his employment with the Company, to any individual of the Company’s agents, clients, competitors, or entity other persons or businesses with which the Company has or has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringcommercial relations.
(b) If any restriction set forth 16.3 The parties hereto acknowledge and confirm that the above covenants or restrictions in this Section 6 is found by any court of competent jurisdiction Clause 16 are reasonable and necessary to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over protect the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection legitimate business interests of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary hereinCompany.
Appears in 1 contract
Restrictive Covenants. Employee agrees that the following covenants are reasonable and necessary to protect Company’s interests, including but not limited to its trade secrets and other confidential information, and therefore agrees to the following covenants which are agreed to be ancillary to the Confidentiality Agreement to be executed by Employee concurrently herewith. Employee agrees as follows:
(a) During the term The Confidentiality Agreement is incorporated herein by reference for all pertinent purposes and such Confidentiality Agreement and all of this Agreement its terms and provisions shall be deemed a part hereof and shall be enforceable hereunder separate and distinct from its enforceability as a separate agreement, e.g., it shall be enforceable as a separate and distinct agreement as well as being enforceable as a part hereof; and Employee further agrees that he will not, while at any time employed by Company and for a period of one eighteen (118) year after months following the termination or expiration thereofof such employment, the Employee will not directly or indirectly:
(i) whether as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lenderindividual, or in any other capacity whatsoever capacity, directly or indirectly; (other than as the holder i) in competition with Company directly solicit or sell or knowingly participate in any active way concerning a sale of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing products or selling services of the kind similar to Company’s products or type developed services to any customer or being developed, produced, marketed client which Employee at any time solicited or sold by the Company while the Employee was employed by the for Company; or
(ii) hire, engage, recruit, solicit or induce, induce or attempt to induceinduce any distributor, any current vendor, representative, agent or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their modify its business relationship with, the with Company; or
(iii) induce or attempt to induce any of (x) Company’s customers or clients or (y) individuals or entities who/which have been customers or clients of Company within the 12 months preceding termination of the Term, to terminate or in any way modify its business relationship with Company; or (iv) solicit, divert or take away, or attempt to solicit, divert or to take away, the business from Company, any individuals or patronage of any of the clients, entities who (x) are Company’s customers or accounts, clients or prospective clients, (y) who/which have been customers or accounts, clients of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) 12 months preceding any potential solicitation or hiring.termination of the Term with Company;
(b) If any restriction set forth In addition to the covenants made in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends 7 (a) above, for too long a period of time twelve (12) months following termination of the Term Employee, will not, in competition with Company, directly solicit or over too great a range sell products or services similar to Company’s products or services to any customer or client of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.Company; and
(c) The restrictions contained in Enforcement of the above Sections 6, 7 (a) and 7 (b) are the only practical means of enforcing this Section 7 and 8 are necessary for of enforcing the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purposeConfidentiality Agreement. The Employee agrees that any breach enforcement of Sections 6, this Section 7 or 8 will cause the Company substantial is necessary to protect Company’s goodwill and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may business interests. This Section 7 shall be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement deemed ancillary to the contrary hereinConfidentiality Agreement. Employee agrees that all of the provisions of this Agreement and the Confidentiality Agreement are valid and enforceable as written and according to their respective terms.
Appears in 1 contract
Samples: Employment Agreement (INX Inc)
Restrictive Covenants. (a) During the term Restricted Period, each of this Agreement and for a period of one (1) year after the termination or expiration thereofCompany, the Employee Seller Related Parties and the Beneficial Owners will not not, directly or indirectly:
, in any manner (i) whether on its, his or her own account, or as an individual proprietorowner, partneroperator, stockholdermanager, officer, employee, director, joint venturer, investor, lender, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employeeconsultant, officer, director, contractor employee, investor, agent or other business associate otherwise), anywhere in the Applicable Area, engage in the Business, or own any interest in, manage, control, provide financing to (including through lending money), participate in (whether as an owner, operator, manager, consultant, officer, director, employee, investor, agent, representative or otherwise), provide services for or advise or consult with or render services for any Person that conducts, operates, carries out or engages in any Other Competing Business; provided, however, that the ownership by either the Company, the Seller Related Parties or a Beneficial Owner of less than five percent (5%) of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage outstanding stock of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served publicly-traded corporation shall not be deemed to engage solely by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringreason thereof in such corporation’s business.
(b) If During the Restricted Period, each of the Company, the Seller Related Parties and the Beneficial Owners will not, directly or indirectly, in any restriction set forth manner (whether on its, his or her own account, or as an owner, operator, manager, consultant, officer, director, employee, investor, agent or otherwise), (i) call upon, solicit or provide services to any client, operator, distributor, supplier or customer of the Business that is a client, operator, distributor, supplier or customer of the Business as of the Closing Date with the intent of selling or attempting to sell any products or services similar to those offered by the Business as of such date or solicit or induce any client, operator, distributor, supplier or customer to reduce or refrain from doing any business with the Buyer, (ii) hire or engage, or recruit, solicit or otherwise attempt to employ or engage, or enter into any business relationship with, any Person currently or formerly employed by, or providing consulting services to, the Company or any Transferred Employee, or induce or attempt to induce any Person to leave such employment or consulting arrangement, or (iii) in any way interfere with the relationship between the Buyer and (A) any employee, consultant, or sales representative of the Business as of the Closing Date, or (B) any Person that is a client, customer, broker, distributor, supplier, licensee or other business relation (or any prospective client, customer, broker, distributor, supplier, licensee or other business relation) of the Business as of the Closing Date, including inducing any such client, customer, broker, distributor, supplier, licensee or other business relation to reduce or refrain from conducting Business with the Buyer; provided, however, that nothing in this Section 6 is found 5.12(b) shall prevent the Company, a Beneficial Owner or any of his, her or its Affiliates from hiring, engaging or soliciting any Person (i) whose employment or engagement was terminated by any court the Company more than six months prior to such hiring, engagement or solicitation or (ii) who responds to a widespread, general solicitation that does not target t Transferred Employees or the employees or consultants of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceableBusiness.
(c) The restrictions contained in Sections 6During the Restricted Period, 7 and 8 are necessary for the protection each of the business Company, the Seller Related Parties and goodwill the Beneficial Owners, agrees that it will not, directly or indirectly, whether in written or oral form, criticize, denigrate or disparage the Buyer or any of its Affiliates, or any of their respective current or former managers, equityholders, directors, officers employees or representatives, with respect to any of its past or present activities.
(d) For purposes of this Section 5.12, the “Restricted Period” means a period beginning on the Closing Date and ending on the four (4) year anniversary of the Company and are considered by Closing Date; provided, however, that if either the Employee Interim Earn-out Amount or the Final Earn-out Amount becomes payable, such period shall be extended to be reasonable for such purpose. The Employee agrees the six (6) year anniversary of the Closing Date; provided, further, that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breacha breach or violation by the Company, the Seller Related Parties or a Beneficial Owner (including, in addition each case, a failure to such other remedies which may be availablecause their officers and employees, Affiliates and officers and employees of their Affiliates in their capacity as such) of this Section 5.12, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement Restricted Period with respect to the contrary hereinParty so breaching or in violation hereof shall be extended by a period of time equal to the period of time during which the Party so breaching or in violation hereof has violated the terms of this Section 5.12.
Appears in 1 contract
Samples: Asset Purchase Agreement
Restrictive Covenants. 17.1 The Seller covenants with the Buyer with the intent of securing to the Buyer the full benefit and other value of the Goodwill and connection of the Business and as an essential part of this Agreement that it shall not (and shall procure that no other member of the Seller’s Group shall) without the prior written consent of the Buyer (whether as principal or agent and whether alone or jointly with or as a shareholder of any other company):
(a) During the term of this Agreement and (subject to clause 17.2) for a period of one (1) year after 5 years from the termination or expiration thereof, the Employee will not Transfer Date directly or indirectly:
(i) carry on or otherwise be engaged concerned or interested in any capacity (whether for reward or otherwise) in any business which is similar to, and competes with directly or indirectly, any business being carried on by the Business as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lendercarried on at the Transfer Date;
(ii) in connection with any business which is similar to and competes with the Business as carried on at the Transfer Date seek to do business with or canvass or solicit orders from or assist another person to do business with or canvass or solicit orders from or otherwise have dealings in the course of any such business with or entice away from the Buyer any person who at any time in the 12 months preceding the Transfer Date was a customer or client of the Business or who at the Transfer Date was in the process of negotiating with the Seller;
(iii) employ or engage save pursuant to a general recruitment advertisement placed by the Seller, or in solicit or contact with a view to employment or engagement any other capacity whatsoever (other than as person who is, and was at the holder date of not more than one percent (1%) this Agreement or at any time during the 6 months prior to the date of this Agreement, an employee of the total outstanding stock Business, whether or not such person would commit a breach of a publicly held company), engage in contract by leaving his employment;
(iv) do or say anything which is harmful to the business of developing, producing, marketing or selling services reputation of the kind Business or type developed which is likely to cause any person to reduce the amount of business transacted between that person and the Business or to seek to change the terms of such business in a manner adverse to the Business in each case where the Seller is aware that the thing being developed, produced, marketed or sold by the Company while the Employee was employed by the Companydone will have such effect; or
(iib) hiredirectly or indirectly carry on any business of any kind at any time under the Business Names (or any similar name or a name likely to be confused with it save that no member of the Seller’s Group shall be precluded from using the acronym “NGB” with another letter, engagenumber, recruit, solicit symbol or induce, word (other than the combination “NGBM”).
17.2 Nothing in clause 17.1 shall preclude the Seller or attempt to induce, any current member of the Seller’s Group from holding (directly or prospective employee, officer, director, contractor through nominees) investments listed on the Official List of the UK Listing Authority or in respect of which dealings take place in the Alternative Investment Market of London Stock Exchange plc or any other recognised investment exchange provided that such investment does not exceed 3% of the issued shares or other business associate securities of any class of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Companyrelevant company.
(iv) For 17.3 While the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 clause 17.1 are considered by the parties to be fair and 8 are necessary reasonable in all the circumstances the parties agree that if such restrictions by themselves or taken together shall be adjudged to go beyond what is reasonable in all the circumstances for the protection of the business and goodwill interests of the Company Buyer but would be adjudged reasonable if part or parts of the wording thereof were deleted or the periods thereof were reduced or the range of businesses or area dealt with thereby were reduced in scope the relevant restriction or restrictions shall apply with such modifications as may be necessary to make it or them valid and are considered effective.
17.4 The Seller undertakes with the Buyer that:
(a) it will at all times after the Transfer Date keep secret and not use nor disclose or divulge to any third party any Confidential Information. This clause 17.4 is without prejudice to any restrictions imposed by law;
(b) it will not represent itself after Completion as then being in any way connected with or interested in the Business.
17.5 The Seller undertakes to the Buyer:
(a) to use its reasonable endeavours to procure either the liquidation and termination of the corporate existence of or the change of name of each of the Overseas Subsidiaries to a name which does not contain or which is not similar to the Business Names as soon as reasonably practicable after Completion; and
(b) to procure that after the Transfer Date each of those companies referred to in (a) shall not trade other than to complete their respective obligations under any contract in existence at the Transfer Date.
17.6 The Buyer undertakes with the Seller that it will at all times after the Transfer Date keep secret and not use or disclose or divulge to any third party any information in the Transferred Records which relates to the Excluded Contracts, other than as required by the Employee Buyer’s provision of Shared Services under schedule. This clause 17.6 is without prejudice to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary hereinrestrictions imposed by law.
Appears in 1 contract
Restrictive Covenants. (a) During Each Seller covenants that, commencing on the term Closing Date and ending on the fifth anniversary of this Agreement the Closing Date (the “Noncompetition Period”), such Seller shall not, and for a period of one (1) year after the termination or expiration thereofit shall cause its Affiliates not to, the Employee will not engage in, directly or indirectly:
(i) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lenderin any capacity, or have any direct or indirect ownership interest in, or permit such Seller’s or any such Affiliate’s name to be used in connection with, any other capacity whatsoever (other than as business anywhere in the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company)world which is engaged, engage directly or indirectly, in the business of developing, producingmanufacturing, marketing or selling any products or equipment or providing services of the kind which are competitive with products or type developed equipment manufactured, marketed, sold or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induceunder development by, or attempt to induceservices provided by, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, Target Companies as of the Company which were contactedClosing Date, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictionsincluding, without limitation, the word Current Products and any other products, equipment or services constituting the Business other than as provided in Schedule 5.2(a) (collectively, the “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringRestricted Business”).
(b) If It is recognized that the Restricted Business is and is expected to be conducted throughout the world and that more narrow geographical limitations of any restriction nature on this non-competition covenant (and the non-solicitation covenants set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic areaSections 5.2(c), it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceableand 5.2(d)) are therefore not appropriate.
(c) The Each Seller covenants that, during the Noncompetition Period, such Seller shall not, and it shall cause its Affiliates not to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any clients or customers of any of the Target Companies or potential clients or customers of any of the Target Companies for purposes of diverting their business or services from any of the Target Companies or causing them to cease doing business with or otherwise adversely modify their relationship with any of the Target Companies other than as provided in Schedule 5.2(a).
(d) Each Seller covenants that, during the Noncompetition Period, such Seller shall not, and it shall cause its Affiliates not to, (i) hire or solicit the employment or engagement of services of any Person who is or was employed or engaged as an employee, contractor or consultant by any of the Target Companies during such period on a full- or part-time basis, or (ii) otherwise induce or attempt to induce any such employee, contractor or consultant to terminate or otherwise modify, in any respect adverse to the Target Companies, its employment or other relationship with the Target Companies; provided that the Sellers may employ any employee of the Target Companies whose employment is terminated by the Target Companies without cause following the Closing Date.
(e) Each Seller acknowledges that the restrictions contained in Sections 6this Section 5.2 are reasonable and necessary to protect the legitimate interests of Buyer and the Target Companies after the Closing and constitute a material inducement to Buyer to enter into this Agreement and consummate the Transactions. Each Seller acknowledges that any violation of this Section 5.2 will result in irreparable injury to Buyer and the Target Companies and agrees that Buyer and the Target Companies, 7 or any of them, shall be entitled to preliminary and 8 permanent injunctive relief, without the necessity of proving actual damages or the posting of a bond, which requirements are necessary for expressly waived, as well as an equitable accounting of all earnings, profits and other benefits arising from any violation of this Section 5.2, which rights shall be cumulative and in addition to any other rights or remedies to which Buyer and the protection Target Companies, or any of them, may be entitled. Without limiting the generality of the business foregoing, the Noncompetition Period shall be extended for an additional period equal to any period during which any Seller or any Affiliate of any Seller is in breach of its obligations under this Section 5.2.
(f) In the event that any covenant contained in this Section 5.2 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered and goodwill of is specifically requested to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the Company and are considered maximum time, geographic, product or service, or other limitations permitted by the Employee to be reasonable for such purposeapplicable Law. The Employee agrees that any breach of Sections 6, 7 covenants contained in this Section 5.2 and each provision thereof are severable and distinct covenants and provisions. The invalidity or 8 will cause the Company substantial and irrevocable damage and therefore, in the event unenforceability of any such breachcovenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.
(g) Sellers understand and acknowledge that Xxxx Xxxxxxx holds extensive knowledge regarding the Restricted Business. Sellers have caused Xxxx Xxxxxxx to be subject to a noncompetition covenant pursuant to which he has covenanted and agreed that he will not, directly or indirectly, for a period of three (3) years following the Closing Date, engage in the Restricted Business in any capacity, have any direct or indirect ownership interest in an entity engaged in the Restricted Business, or hire or solicit any employee, consultant or contractor of any of the Target Companies or otherwise induce or attempt to induce any such employee, consultant or contractor to terminate or otherwise modify, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement respect adverse to the contrary hereinTarget Companies, its employment or other relationship with such Target Company. Buyer and the Target Companies will be third party beneficiaries of such noncompetition covenant executed by Xxxx Xxxxxxx.
(h) Without the prior written consent of Buyer, Sellers and their Affiliates will not adopt or use the word “Inform” in connection with any business segment of Sellers or their Affiliates.
Appears in 1 contract
Restrictive Covenants. (a) During Each of the term of this Agreement Peek Parties agrees that it will not, and for a period of one (1) year after the termination it shall cause its Affiliates not to, either alone or expiration thereofin conjunction with any other Person, the Employee will not directly or indirectly:
(a) for a period of five years after the Effective Date, own, manage, operate, provide financing to, or join, control or participate in the ownership, management, operation or control of, or provision of financing to, any business wherever located (whether in corporate, proprietorship or partnership form or otherwise), if such business competes with the Business in the Jurisdiction as the Business is currently conducted or as it has been conducted during the twelve (12) month period prior to the Effective Date;
(b) for a period of five years after the Effective Date, for the direct or indirect benefit of any Person engaged in the business of manufacturing or selling products that are competitive with the products manufactured or distributed on the date hereof by the Business in the Jurisdiction (a “Competitor”), seek to procure orders from, or do business with, or procure directly or indirectly with any other Person, or procure orders from or do business with, in any case, in the Jurisdiction, any Person who or which has been a customer of the Business at any time during the period of twelve (12) months prior to the Effective Date;
(c) for a period of five years after the Effective Date, for the direct or indirect benefit of any Competitor, solicit or contact with a view to the engagement or employment by any Person, any Person who has been an employee, officer or manager of Seller in the twelve (12) months prior to the Effective Date, in any case if the employee, officer or manager either was, as a part of his or her duties, privy to Confidential Information or know-how; provided however, that, without limitation, the foregoing shall not apply to generalized solicitations for employees by use of advertisements in the media that are not specifically targeted at employees of the Seller or would be in a position to exploit the trade connections of the Business; or
(d) for a period of five years after the Effective Date, seek to contract or interfere with or otherwise engage in such a way as to adversely affect the Business in the Jurisdiction as operated on the date of this Agreement any Person who or which is a party to a Contractual Obligation with the Business, or has otherwise been engaged to manufacture, assemble, supply or deliver products, goods, materials or services to the Business, at any time during the period of twelve (12) months prior to the Effective Date; provided, however, that (i) as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lenderthis Section 2 shall not be applicable if Stockholder is acquired, or enters into a business combination transaction with, another Person that engages in any other capacity whatsoever (other than of the activities in the Jurisdiction that would otherwise be prohibited by this Section 2 so long as the holder primary purpose of such transaction is not more to evade the provisions of this Section 2, (ii) ownership or acquisition by the Peek Parties, and their Affiliates, of an aggregate of less than one five percent (15%) of the total outstanding stock of any publicly traded company which competes with the Business shall not constitute a publicly held company)violation of this Section 2, engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt nothing in this Section 2 shall be construed to divert or to take away, restrict the business or patronage of any ability of the clients, customers or accounts, or prospective clients, customers or accounts, employees of the Company which were contactedPeek Parties to gain employment in the relevant industry with entities other than the Peek Parties and their Affiliates, solicited or served by the Employee while employed by the Company.
and (iv) For notwithstanding the purposes above and for avoidance of these restrictionsdoubt, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth nothing in this Section 6 2 shall prevent the Peek Parties or their Affiliates from continuing to conduct the SMI Business as it is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, currently conducted in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary hereinJurisdiction.
Appears in 1 contract
Restrictive Covenants. 10.1 In order to protect the value of the Sale Shares and the Business Information the Seller covenants with the Company and the Buyer that the Seller shall not without the prior consent in writing of the Buyer, and shall procure that none of that Seller’s connected persons shall, directly or indirectly, whether itself, himself or herself, or by its, his or her employees or agents and whether on its, his or her own behalf or on behalf of any other person, firm or company or otherwise, for the period specified in clause 10.2:
(a) During carry on, be employed or otherwise engaged, concerned or interested in any capacity (whether or not for reward) in, provide any technical, commercial or professional advice to, or in any way assist any business which is or is about to be involved in the term manufacture, production, distribution or sale of this Agreement and for a period the Restricted Products or any of one them or the supply of the Restricted Services or any of them in England in competition with the Company;
(1b) year after in relation to the termination Restricted Products or expiration thereofany of them or the Restricted Services or any of them, the Employee will not directly solicit or indirectlycanvass, accept orders from or otherwise deal with any person who:
(i) as an individual proprietorwas a customer of the Company at any time during the twelve months prior to the Completion Date; or
(ii) at the Completion Date was in the process of negotiating or contemplating doing business with the Company, partner, stockholder, officer, employee, and with whom that Xxxxxx had personal dealings in the course of the Company's business;
(c) solicit or entice away or attempt to solicit or entice away from the Company any director, joint venturer, investor, lender, manager or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage in the business of developing, producing, marketing senior employee or selling services of the kind consultant employed or type developed or being developed, produced, marketed or sold otherwise engaged by the Company while on the Employee was employed Completion Date, whether or not that person would commit any breach of any employment contract by leaving the employment of the Company; or
(iid) hire, engage, recruit, solicit (subject to clause 10.6) employ or induce, otherwise engage any person who at the Completion Date or attempt to induce, any current during the preceding twelve months was employed or prospective employee, officer, director, contractor or other business associate of otherwise engaged by the Company and who as a result is or is reasonably likely to terminate their employment with, or otherwise cease their business relationship with, the Companybe in possession of any Business Information; or
(iiie) solicitbe employed or engaged in any company, divert firm or take away, business which as regards any goods or attempt services is a supplier to divert or to take away, the business or patronage a customer of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” 10.2 The covenants in clause 10.1 shall apply to for the period of three years from the Completion Date but nothing in this Agreement shall prevent the Seller from performing her duties under the Consultancy Agreement or any individual other consultancy arrangement made at or entity with which after the Completion Date between the Company has had substantive contact within or the twelve month period prior to Buyer and the Seller.
10.3 The Seller covenants with the Buyer that she shall not and shall procure that none of her connected persons at any potential hiringtime after Completion directly or indirectly, solicitationwhether itself, recruitinghimself or herself, diversion or by that Seller’s employees or agents or otherwise. In addition a “current” employee shall include :
(a) carry on any employee who was employed by trade or business or be associated with any person involved in any trade or business using the Company within the three (3) months preceding names The Letting Partnership, Letting Partnership, TLP or any potential solicitation name incorporating any words in those trading names or hiring.any confusingly similar name;
(b) If (subject to clause 10.5) in the course of carrying on any restriction set forth in this Section 6 is found by trade or business, claim, represent or otherwise indicate any court ongoing association with the Company or, for the purpose of competent jurisdiction to be unenforceable because it extends for too long a period of time obtaining or over too great a range of activities retaining any business or in too broad a geographic areacustom, it shall be interpreted to extend only over claim, represent or otherwise indicate any past association with the maximum period of time, range of activities or geographic area as to which it may be enforceable.Company;
(c) interfere or seek to interfere with, or with the continuance of, the supply of goods or services to or by the Company (or the terms of any such supply); or
(d) (subject to clause 10.6) without the consent of the Company or the Buyer use, whether on his or her own behalf or on behalf of any third party, or disclose to any third party, any Business Information.
10.4 Subject to clause 10.6 the Seller covenants with the Company and (as a separate and independent covenant) the Buyer that, if the Company shall have obtained any Business Information from any third party under an agreement including any restriction on disclosure known to the Seller, she shall not and shall procure that none of her connected persons shall at any time without the consent of the Company or the Buyer infringe that restriction.
10.5 The restriction in clause 10.3(b) shall not prevent the Seller if she continues in the employment of the Company after Completion from claiming, representing or indicating her association in that capacity with the Company so long as that employment continues and in accordance with the terms of the relevant service agreement.
10.6 The restrictions contained in Sections 6clauses 10.1(d), 7 10.3(d) and 8 10.4 shall not apply:
(a) to any Business Information which is in or becomes part of the public domain, other than through a breach of the obligations of confidentiality set out in this Agreement; or
(b) to the extent that disclosure of Business Information is required by or in accordance with any Official Requirement.
10.7 The Seller agrees with the Buyer that the covenants in clauses 10.1 to 10.4 inclusive (on which the Seller confirms that she has received independent legal advice):
(a) are reasonable and necessary for the protection of the business and goodwill value of the Company Sale Shares and the Group; and
(b) are considered by given to induce the Employee Buyer to be reasonable for such purpose. The Employee agrees that any breach enter into this Agreement and in consideration of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary hereinit doing so.
Appears in 1 contract
Restrictive Covenants. In exchange for the consideration described herein, Consultant also expressly and voluntarily covenants and agrees that for twelve (12) months following the termination of Consultant’s employment for any reason, Consultant shall not, directly or indirectly, by agency, as a director, officer, employee or consultant, through a corporation, partnership, limited liability company, or by any other artifice or device:
(a) During the term Engage in activities or business, or establish any new businesses, in any geographic area of this Agreement and for a period of one (1) year after the termination any state or expiration thereof, the Employee will not directly or indirectly:
country (i) as an individual proprietorin which Consultant was physically located at the time Consultant provided services in furtherance of the business interests of the Company, partner(ii) for which Consultant had supervisory responsibility (in whole or in part), stockholderif any, officer, employee, director, joint venturer, investor, lenderon behalf of the Company, or (iii) to which Consultant was assigned by the Company; provided, in each case, that Consultant provided such services or had such responsibility or assignment within twelve (12) months prior to the termination of Consultant’s employment (any such area, the “Restricted Area”), that are substantially in competition with the business of the Company or any of its affiliates as of December 31, 2018, including (i) selling goods or services of the type sold by the Company or any of its affiliates in the Restricted Area, over which Consultant had management oversight and/or responsibility in his position as Senior Vice President, General Counsel and Chief Administrative Officer, except that Consultant may sell any goods or services that were not sold or to be sold by the Company or any of its affiliates at any time during Consultant’s employment with the Company or any of its affiliates, (ii) soliciting any customer or client or prospective customer or client of the Company or any of its affiliates to purchase any goods or services sold by the Company or any of its affiliates from anyone other than the Company or any of its affiliates, or servicing any such customer or client or prospective customer or client in any other capacity whatsoever way in connection with or relating to the goods or services sold by the Company or any of its affiliates, (other than as iii) interfering with, or attempting to interfere with, business relationships between the holder Company or any of not more than one percent (1%) its affiliates and the suppliers, partners, members or investors of the total outstanding stock Company or any of a publicly held companyits affiliates, and (iv) assisting any person in any way to do, or attempt to do, anything prohibited by clauses (i), engage (ii) or (iii) above; or
(b) Perform services in the business of developingarmored vehicle transportation, producingsecure international transportation of valuables, marketing coin processing services, currency processing services, cash management services, safe and safe control services, payment services, security and guarding services, deposit processing services/daily overnight credit check imaging or selling services jewel or precious metal vaulting for Garda, Xxxxxx, Xxxxxx or any other direct competitor of the kind or type developed or being developed, produced, marketed or sold by Company in the Restricted Area similar to the services Consultant performed for the Company while the Employee was employed by the Company; or its affiliates; or
(c) Perform any action, activity or course of conduct that is substantially detrimental to the Company or any of its affiliates or to the business reputation of the Company or any of its affiliates, including (i) soliciting, recruiting or hiring any employees of the Company or any of its affiliates or persons who have worked for the Company or any of its affiliates, (ii) hiresoliciting or encouraging any employee of the Company or any of its affiliates to leave the employment of the Company or any of its affiliates or intentionally interfering with the relationship of the Company or any of its affiliates with any such employee, engage, recruit, solicit or induceand (iii) assisting any person in any way to do, or attempt to inducedo, any current anything prohibited by clauses (i) or prospective employee(ii) above. Consultant specifically acknowledges that, officer, director, contractor or other business associate during the course of the Company to terminate their his employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within as Senior Vice President, General Counsel and Chief Administrative Officer, he was exposed to, and played a crucial role in, the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction development and implementation of the Company’s strategic business operations, financial performance, marketing strategy, and plans for existing and future products and services in the Restricted Area. As such, Consultant agrees that the geographic scope of the restrictions set forth in this Section 6 7 is found by any court of competent jurisdiction no more broad than reasonably necessary to protect the Company’s legitimate business interests. It shall not be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6this Section 7, 7 or 8 will cause the of comparable provisions in any Company substantial and irrevocable damage and thereforeArrangement, for Consultant to engage in the event private practice of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance law at a private law firm following termination of his employment under this Agreement so long as Consultant complies fully with his ethical obligations as a lawyer and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary hereindoes not violate his obligations under Sections 8 and 9 below.
Appears in 1 contract
Samples: Consulting Agreement (Brinks Co)
Restrictive Covenants. (a) During Both during the term of this Agreement Employment and for a period of one (1) year after during the termination or expiration thereofRestricted Period, the Employee Executive will not, without the prior written consent of the Company (such consent not to be unreasonably withheld), whether by himself, through his employees or agents or otherwise and whether on his own behalf or on behalf of any person, directly or indirectly:
(a) be employed, engaged, concerned or interested (except as a Minority Holder) in: (i) as an individual proprietorthe businesses of [AB Inbev, partnerBacardi Limited, stockholderXxxxx Xxxxxx, officerCarlsberg A/S, employeeHeineken NV, directorPernodRicard or SAB Xxxxxx]. The Company may notify the Executive from time to time of additions to the foregoing list of companies, joint venturer, investor, lender, such additions being businesses which are similar to and compete with any business being carried on by the Company or in by any Group Company; or (ii) that part of any other capacity whatsoever (other than as the holder of not more than one percent (1%) of the total outstanding stock of a publicly held company), engage business or person that is involved in the business of researching into, developing, producingmanufacturing, marketing distributing, selling, supplying or selling otherwise dealing with Restricted Products or Restricted Services, if the business or person is or seeks to be in competition with the Company;
(b) so as to compete with the Company, solicit business from or canvas any Customer or Prospective Customer in respect of Restricted Products or Restricted Services;
(c) so as to compete with the Company, accept orders from, act for or have any business dealings with, any Customer or Prospective Customer in respect of Restricted Products or Restricted Services;
(d) solicit or induce or endeavour to solicit or induce any person who, on the Termination Date, was a Restricted Employee (and with whom the Executive had dealings during the Relevant Period) to cease working for or providing services to the Company, whether or not any such person would thereby commit a breach of contract;
(e) employ or otherwise engage any Restricted Employee in the kind business of researching into, developing, manufacturing, distributing, selling, supplying or type developed otherwise dealing with Restricted Products or being developedRestricted Services if that business is, producedor seeks to be, marketed or sold by the Company while the Employee was employed by in competition with the Company; or
(iif) hire, engage, recruit, solicit or induce, induce or attempt endeavour to induce, solicit or induce any current or prospective employee, officer, director, contractor or other business associate of Supplier to cease to deal with the Company to terminate their employment with, or otherwise cease their business and shall not interfere in any way with any relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by between a Supplier and the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary herein.
Appears in 1 contract
Samples: Service Agreement (Diageo PLC)
Restrictive Covenants. (a) During the term of this Agreement and for For a period of one two (12) year years after the termination or expiration thereofdate of this Agreement, the Employee will not Shareholder agrees that neither Seller nor Pardos nor any Shareholder Affiliate will, directly or indirectly:
(i) , either individually or as an individual proprietoremployee, agent, partner, stockholder, officer, employeeprincipal, director, joint venturershareholder, investorconsultant, lender, lender or in any other capacity whatsoever whatsoever, (other than as i) participate or engage in, or own or have any interest in or assist in any way or capacity any Person that is engaged in, any business that is competitive with the holder Protected Business within the Business Territory, (ii) entice, induce, or in any manner influence any person who is an employee of the Protected Business to leave such service or hire any such person, (iii) contact or solicit any Person within the Business Territory that is or at any time within the one year period immediately prior to the date of this Agreement was a customer of TDI for the purpose of providing products, services or business competitive with that provided by the Protected Business, or provide any such products, services or business to any such Person, (iv) request or advise any suppliers, customers or accounts of the Protected Business to withdraw, curtail or cancel any business that is placed with the Protected Business, (v) use or disclose, or cause to be used or disclosed, any secret, confidential or proprietary information of the Protected Business, regardless of the fact that Seller and/or Pardos or any Shareholder Affiliate may have participated in the development of that information, or (vi) make any disparaging remarks about the Protected Business or about Buyer or its affiliates, their employees or officers, or their services, practices or conduct. Nothing herein shall prohibit Seller and/or Pardos or any Shareholder Affiliate from being a passive owner of not more than one percent (1%) 5% of the total outstanding stock of a corporation, which is publicly held company)traded, engage so long as neither Seller nor Pardos nor such Shareholder Affiliate has any active participation in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiringsuch corporation.
(b) If any restriction The restrictive covenant set forth in Section 2(a)(i) of this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it Agreement shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, not apply in the event that TDI terminates the Consulting Agreement other than for “Cause” (as defined in Section 5(a) of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary hereinConsulting Agreement).
Appears in 1 contract
Restrictive Covenants. 19.1 Each of the Vendors severally covenant with the Purchaser that he will not either on his own account or in conjunction with or on behalf of any person or persons whether directly or indirectly, including an ownership interest in a third party, for the period of:
(a) During in relation to Peter Bache two years from Closing and in relation to thx xxxxxxxxx of the term of this Agreement and Vendors nine months from Closing, supply products to or provide services for a any person, firm or company who or which was either at Closing or during the period of one (1) year after twelve months prior to Closing a client or customer of the termination Business where such goods or expiration thereofservices are the same as or compete with products sold to or services provided by the Business to that person, firm or company at or during the Employee will not directly or indirectly:period of twelve months prior to Closing;
(ib) in relation to Peter Bache two years from Closing and in relation to thx xxxxxxxxx of the Vendors nine months from Closing, solicit or endeavour to solicit the custom of any person, firm or company who or which was either at Closing or during the period of twelve months prior to Closing had been a client or customer of the Business, for the supply of products or the provision of services which are the same as an individual proprietoror compete with those products sold or services provided by the Business to that person, partnerfirm or company at or during the period of twelve months prior to Closing;
(c) in relation to Peter Bache two years from Closing and in relation to thx xxxxxxxxx of the Vendors nine months from Closing, stockholdersolicit or entice away or endeavour to solicit or entice away from the Purchaser any officer or employee (save for persons performing the function of junior administrative or secretarial employees) who was either at Closing or during the period of six months prior to Closing engaged in the Business whether or not such person would commit a breach of his contract of employment by reason of leaving the service of the Purchaser;
(d) in relation to Peter Bache two years from Closing and in relation to thx xxxxxxxxx of the Vendors nine months from Closing, officercarry on or be engaged, employee, director, joint venturer, investor, lender, concerned or interested in England in the any other capacity whatsoever business which competes with the Business as the same was carried on at Closing (other than as the a holder of securities listed on a recognised stock exchange or provided that such holding shall not more than exceed one percent (1%) per cent of the total outstanding stock class of a publicly held companysecurities of which the said holding forms part), engage in the business of developing, producing, marketing or selling services .
19.2 Each of the kind or type developed or being developed, produced, marketed or sold by Vendors hereby acknowledges and declares that the Company while restrictions in clause 19.1 are reasonable in all the Employee was employed by circumstances as at today's date; that such restrictions are integral to the Companyterms on which the Purchaser has agreed to purchase the Business; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate and that each of such restrictions shall be construed and take effect independently of the Company to terminate their employment with, others.
19.3 If any breach or otherwise cease their business relationship withviolation of the provisions of clause 19.1 occurs, the Company; or
(iii) solicit, divert or take away, or attempt Vendors and the Purchaser agree that damages alone are likely not to divert or be sufficient compensation and that injunctive relief is reasonable and is likely to take away, be essential to safeguard the business or patronage of any interests of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
Purchaser and that injunctive relief (iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such any other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any afforded by a court of competent jurisdiction, regardless equity) may (subject to the discretion of the courts) be obtained. No waiver of any statement breach or violation shall be implied from forbearance or failure by the Purchaser to the contrary hereintake action.
Appears in 1 contract
Restrictive Covenants. 2.1. You agree that, in exchange for the Company's willingness to furnish you with the Confidential Information, you shall not, during the pendency of your engagement as a consultant to the Company, or within the six month period following termination of the referenced Consulting and Settlement Agreement, either directly or indirectly, unless any of the following actions shall have been specifically invited or authorized in writing by the Company, (a) During effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause to participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in, (i) any tender or exchange offer, merger or other business combination involving the term Company or any of this Agreement and for its subsidiaries; (ii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company or any of its subsidiaries; or (iii) any "solicitation of proxies" (as such terms are used in the Commission's proxy rules), consents or other authorizations to vote any voting securities of the Company; (b) form, join or in any way participate in a period "group" (as defined under the Securities Exchange Act of one 1934, as amended) or otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or policies of the Company; (1c) year after take any action which might force the termination Company to make a public announcement regarding any of the types of matters set forth in (a) above; or expiration thereof(d) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Notwithstanding the foregoing, the Employee will not (a) there shall be no restriction on your purchase or sale, directly or indirectly:
, of any securities of, or voting rights with respect to, the Company or any of its subsidiaries, whether by way of private or open market transactions; and (b) Consultant shall, at all times, be permitted to solicit or obtain proxies from the following persons: (i) Xxxxx Xxxxx; (ii) Xxxx Xxxxxxx; (iii) Xxx Xxxxxxx; (iv) C.A.S.E., a nonprofit organization; and (v) up to five (5) additional persons, in Consultant's sole discretion.
2.2. You further agree that, in exchange for the Company's willingness to furnish you with the Confidential Information, you shall not, during the pendency of your engagement as an individual proprietor, partner, stockholder, officer, employee, director, joint venturer, investor, lendera consultant to the Company, or in within the six month period following termination of the referenced Consulting and Settlement Agreement, either directly or indirectly, own, manage, operate, control, be an officer or director or be employed by any other capacity whatsoever Competitor (defined below); you will not induce, directly or indirectly, solicit, or cause to be solicited, any employee of the Company to leave his/her employment with the Company; and you will not, directly or indirectly, solicit any customers or clients of the Company that have done business with the Company at any time or from time to time during the period of the Consultant's business relationship hereunder for any business purpose other than for the benefit of the Company. For purposes of this Agreement, a "COMPETITOR" is defined as any person, corporation or other entity which (i) is a telecommunications company of similar size and mission as the holder Company anywhere within the United States or (ii) with locations within a fifty (50) mile radius of Oklahoma City, Oklahoma, that, at any time, sells or attempts to sell any products or services which are the same as or similar to the products and services sold or promoted by the Company at any time and from time to time during the two (2) years immediately prior to the full execution of this Agreement. Beneficial or record ownership of not more than one five percent (15%) of the total outstanding capital stock of a any publicly held company), engage in the business of developing, producing, marketing or selling services of the kind or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
(ii) hire, engage, recruit, solicit or induce, or attempt to induce, any current or prospective employee, officer, director, contractor or other business associate of the Company to terminate their employment with, or otherwise cease their business relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with traded corporation for which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion Consultant performs no active management or otherwiseconsulting services shall not be a violation of this Section 2.2 2.3. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth The restrictive covenants in this Section 6 is found by 2.1 and Section 2.2 are not intended to and shall not prohibit Consultant from performing any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered obligations imposed on him by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial Consulting and irrevocable damage Settlement Agreement and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary hereinhis consulting duties as set forth therein.
Appears in 1 contract
Samples: Consulting and Settlement Agreement (Amerivision Communications Inc)
Restrictive Covenants. (a) During 1. The Seller and each Principal in exchange for the term good and valuable consideration they are receiving from the Contemplated Transactions, the receipt and sufficiency of which is hereby acknowledged, intending to be legal bound and acknowledging the Buyer would not enter into this Agreement or the Contemplated Transactions without this Section 5(h), hereby covenant and for a agree that, during the period commencing at the Closing and continuing until the fifth (5th) anniversary of one the Closing Date (1) year after the termination or expiration thereof“Restricted Period”), the Employee will Seller and each Principal shall not (and shall cause its Affiliates not to) do any of the following, or serve as a partner, joint venturer, director, manager, trustee, officer, employee, independent contractor, agent, lender, investor or equityholder (excluding de minimis holdings in publicly traded companies) of any Person that does any of the following, in each case whether directly or indirectly:
1. participate or engage in, or provide any financial or other assistance to any Person participating or engaging in a Competitive Business anywhere in the world (iit being understood, recognized and acknowledged by the Seller that the Business being purchased hereunder is conducted on a global worldwide basis) as an individual proprietor(the “Restricted Territory”), partnerprovided that this clause (A) shall not apply to any Principal serving in any capacity of the Buyer or any of its Affiliates;
2. solicit, stockholdercontact, or conduct a Competitive Business with (or attempt to conduct a Competitive Business with) any Person who is then, or was within the twelve (12) months prior thereto, a Customer of the Buyer or the Business being purchased hereunder;
3. induce or entice (or attempt to induce or entice) any distributor, supplier, vendor, or any other Person having a business relationship with the Buyer or the Business being purchased hereunder to terminate or adversely modify its relationship with the Buyer or such Business;
4. solicit, contact, hire, engage, or enter into any other business relationship with (or attempt to do any of the foregoing) any Person who is then, or was within the twelve (12) months prior thereto, a director, manager, officer, employee, director, joint venturer, investor, lenderindependent contractor, or in any other capacity whatsoever (other than as the holder of not more than one percent (1%) agent of the total outstanding stock of a publicly held company)Buyer or the Business being purchased hereunder, engage in the business of developing, producing, marketing or selling services of the kind induce or type developed or being developed, produced, marketed or sold by the Company while the Employee was employed by the Company; or
entice (ii) hire, engage, recruit, solicit or induce, or attempt to induceinduce or entice) any such Person to terminate or adversely modify its relationship with the Buyer or such Business, provided that nothing in this clause (D) shall prohibit the publishing of general advertisements not specifically targeted to any current directors, managers, officers, employees, independent contractors, or prospective employee, officer, director, contractor or other business associate agents of the Company to terminate their employment with, Buyer or otherwise cease their business relationship with, the Companysuch Business; or
(iii) solicit, divert or take away, or attempt to divert or to take away, the business or patronage of any of the clients, customers or accounts, or prospective clients, customers or accounts, of the Company which were contacted, solicited or served by the Employee while employed by the Company.
(iv) For the purposes of these restrictions, the word “prospective” shall apply to any individual or entity with which the Company has had substantive contact within the twelve month period prior to any potential hiring, solicitation, recruiting, diversion or otherwise. In addition a “current” employee shall include any employee who was employed by the Company within the three (3) months preceding any potential solicitation or hiring.
(b) If any restriction set forth in this Section 6 is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.
(c) The restrictions contained in Sections 6, 7 and 8 are necessary for the protection of the business and goodwill of the Company and are considered by the Employee to be reasonable for such purpose. The Employee agrees that any breach of Sections 6, 7 or 8 will cause the Company substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Company shall have the right to seek specific performance and injunctive relief in any court of competent jurisdiction, regardless of any statement to the contrary herein.
Appears in 1 contract
Samples: Credit and Security Agreement (STRATA Skin Sciences, Inc.)
