Non-Solicitation Except for those current Cryogen employees listed on Schedule 6.3 hereto (the “CryoCor Employees”) and […***…], neither the Company nor any of its Affiliates shall solicit, hire or engage, whether as an employee, consultant, independent contractor or otherwise, any person who is or was an employee of Cryogen or any of its Affiliates or actively induce or otherwise assist any person or entity in soliciting, hiring or engaging, whether, as an employee, consultant, independent contractor or otherwise, any person who is or was an employee of Cryogen or any of its Affiliates without the prior written consent of Cryogen; provided, however, that, if (i) any such person has not been so employed or engaged by Cryogen or any of its Affiliates for a consecutive period of two (2) years or more and (ii) neither the Company nor any of its Affiliates shall have solicited or actively induced or otherwise assisted in soliciting for the employment or engagement as a consultant or independent contractor of such person while still employed or engaged by Cryogen or any of its Affiliates, then the Company may hire such person without violating the terms of this Section 6.3(a); and, provided further, that this Section 6.3(a) shall be of no force and effect beginning ninety (90) days after the consummation of a Change of Control of Cryogen.
(a) Neither Cryogen nor any of its Affiliates shall solicit, hire or engage, whether as an employee, consultant, independent contractor or otherwise, any of the CryoCor Employees or actively induce or otherwise assist any person or entity in soliciting, hiring or engaging, whether, as an employee, consultant, independent contractor or otherwise, any of the CryoCor Employees without the prior written consent of the Company; provided, however, that, if (i) any such CryoCor Employee has not been so employed or engaged by the Company or any of its Affiliates for a consecutive period of two (2) years or more and (ii) neither Cryogen nor any of its Affiliates shall have solicited or actively induced or otherwise assisted in soliciting for the employment or engagement as a consultant or independent contractor of any such CryoCor Employees while still employed or engaged by the Company or any of its Affiliates, then Cryogen may hire such person without violating the terms of this Section 6.3(b); and, provided further, that this Section 6.3(b) shall be of no force and effect beginning ninety (90) days after the consummation of a Change of Control of the Company.
(b) For purposes of this Agreement, “Affiliate” means a corporation, company, or other legal entity now or hereinafter controlling, controlled by or under common control with a party hereto, for so long as such ownership or control exists. For the purposes of this definition, control shall refer to a greater than 50% interest in the right to make decisions for such entity (e.g., greater than 50% ownership of the voting shares or other voting securities of such entity). Notwithstanding anything to the contrary contained herein, “Affiliate” shall not include (i) in the case of Cryogen, the Company and (ii) in the case of the Company, Cryogen. For purposes of this Agreement, a “Change of Control” shall mean: (x) the liquidation, winding
