Non-Competition, Non-Solicitation and Non-Disclosure. (a) As part of the consideration for the transactions contemplated by this Agreement, the Stockholder covenants and agrees that, for a period of four (4) years following the Closing Date, it will not, either directly or indirectly, alone or as a partner, joint venturer, officer, director, employee, lender, consultant, agent, independent contractor, stockholder or otherwise, or permit any business organization directly or indirectly controlled by it or any of its Affiliates to, engage in the Restricted Business (as defined in Section 9.16 hereof) anywhere in the United States or any foreign country. In order to avoid any doubt, uncertainty or ambiguity, this Section 4.6(a) shall apply to prohibit the Stockholder and its Affiliates from engaging in any business or activity included in the definition of "Restricted Business" in which the Stockholder or its Affiliates were engaged at any time during the two (2) year period preceding the Closing Date. Notwithstanding the foregoing, this Section 4.6(a) shall not preclude any Person that acquires (i) fifty percent (50%) or more of the stock of the Stockholder or any of its Subsidiaries or (ii) all or substantially all of the assets of the Stockholder or any of its Subsidiaries, from engaging in the Restricted Business if such Person actively engaged in the Restricted Business prior to the date such Person first discusses any such acquisition with the Stockholder or any of its Subsidiaries; provided, however, that the Stockholder and its direct and indirect Subsidiaries shall continue to be bound by all of the restrictions contained in this Section 4.6. The passive ownership by the Stockholder or its Affiliates, of not more than three percent (3%) of the shares of capital stock of any corporation having a class of equity securities actively traded on a national securities exchange or in the over-the-counter market shall not be deemed, in and of itself, to violate the prohibitions of this Section 4.6(a). (b) Except for the right of the Stockholder to solicit and attempt to hire the individuals listed on Schedule 4.6 hereto prior to the Closing, the Stockholder covenants and agrees that, for a period of four (4) years following the Closing Date, it will not, either directly or indirectly, employ, hire, engage or be associated with, or attempt to employ, hire, engage or be associated with, or permit any business organization directly or indirectly controlled by the Stockholder or any of its Affiliates to employ, hire, engage or be associated with, or attempt to employ, hire, engage or be associated with, any person who was employed by, or acted as a sales representative for, the Companies during the twelve (12) months prior to the Closing Date or at any time after the Closing Date, without the prior written consent of the Purchaser (which consent may be granted or withheld in the sole discretion of the Purchaser). (c) The Stockholder covenants and agrees that it will not, at any time following the Closing Date, disclose, directly or indirectly, or make available to any Person, or in any manner use for its own benefit, any confidential information or trade secrets relating to the businesses, operations, assets or properties of the Purchaser, the Companies or their Subsidiaries (collectively, the "GROUP"), including, without limitation, business strategies, operating plans, acquisition strategies (including the identities of (and any other information concerning) possible acquisition candidates), financial information (pro forma or otherwise), market analysis, acquisition terms and conditions, personnel information, product information, sources of leads and methods of obtaining new business, know-how, customer lists and relationships, vendor lists, underwriting strategies and methods or any other methods of doing and operating the business of the Group, or other non-public proprietary and confidential information relating to the Group ("Confidential Information"), except to the extent that such information (i) is obtained from a third party whom the Stockholder does not have any reason to believe is bound by a duty of confidentiality, (ii) relates to information that is or becomes generally known to the public other than as a result of a breach thereof or (iii) is required to be disclosed by law (including without limitation any federal regulations) or judicial or administrative process (in which case prior to such disclosure the disclosing party shall promptly provide prior written notice of such required disclosure to the Purchaser in order to afford the Purchaser the opportunity to seek an appropriate protective order preventing such disclosure). (d) The Stockholder acknowledges and agrees that a breach by it or its Affiliates of any of the provisions of this Section 4.6 will cause irreparable harm and damage to the Purchaser and the Companies and that, in the event of such breach, the Purchaser shall have, in addition to any and all remedies at law, the right to an injunction, specific performance or other equitable relief to prevent the violation of the obligations of the Stockholder or its Affiliates hereunder without the necessity of proving such irreparable harm or damage or the inadequacy of remedies at law and without the necessity of posting any bond. (e) The Stockholder acknowledges and agrees that each provision of this Section 4.6 shall be treated as a separate and independent clause, and the unenforceability of any one clause shall in no way impair the enforceability of any of the other clauses herein. Furthermore, if one or more of the provisions contained in this Section 4.6 shall for any reason be held to be excessively broad as to geographical scope, duration, activity or otherwise so as to be unenforceable at law, such provision or provisions shall be construed by the appropriate judicial body by limiting and reducing it or them, as the case may be, so as to be enforceable to the maximum extent compatible with the applicable law as it shall then appear.
Appears in 1 contract
Sources: Stock Purchase Agreement (Healthplan Services Corp)
Non-Competition, Non-Solicitation and Non-Disclosure. (a) As The parties hereto have negotiated the non-competition and non-solicitation provisions contained in this Section 6.04 as an integral part of the consideration for transactions contemplated under this Agreement. Each Restricted Person acknowledges that he or she is a Seller or a beneficiary of a Seller and will receive substantial benefits from the payment of the Aggregate Closing Consideration and the performance of other obligations hereunder by Buyer (and the Entities after the Closing) and acknowledges that Buyer is willing to pay the Aggregate Closing Consideration and proceed with the transactions contemplated hereby because of the customer, driver, contractor, employee and agent relationships of each of the Entities, and that the same may be severely and irreparably harmed by competition from such Restricted Person. Each Restricted Person further acknowledges that Buyer would not have entered into this AgreementAgreement and consummated the transactions contemplated hereby without the non-competition, non-solicitation and non-disclosure provisions contained herein. The Restricted Persons agree that the Stockholder covenants non-competition, non-solicitation and non-disclosure provisions are reasonable and necessary to induce Buyer to enter into this Agreement and consummate the transactions contemplated hereby.
(b) In consideration of the Closing and the transactions contemplated hereby, but subject to the further provisions of this Section 6.04, each Restricted Person, severally and not jointly, agrees that, for a period of four the applicable Restricted Period (4as hereinafter defined) years following the Closing Date, it he or she will not, either and his or her respective Affiliates will not, directly or indirectlyindirectly through another Person, alone without the prior written consent of Buyer, which may be withheld in Buyer's sole and absolute discretion: (i) directly or indirectly through another Person engage or invest in, own, manage, operate, finance, control or participate in the ownership, management, operation, financing or control of, be employed by, serve as a partner, joint ventureran agent, officer, directordirector or consultant to, employeebe associated with or in any manner connected with, lender, consultant, agent, independent contractor, stockholder lend his or otherwise, or permit any business organization directly or indirectly controlled by it her name or any of its Affiliates similar name to, engage in the Restricted lend his or her credit or render services or advice to, any Competitive Business (as defined in Section 9.16 hereofhereinafter defined) anywhere in the United States or any foreign country. In order to avoid any doubtNorth America, uncertainty or ambiguity, this Section 4.6(a) shall apply to prohibit the Stockholder and its Affiliates from engaging in any business or activity included in the definition of "Restricted Business" in which the Stockholder or its Affiliates were engaged at any time during the two (2) year period preceding the Closing Date. Notwithstanding the foregoing, this Section 4.6(a) shall not preclude any Person that acquires (i) fifty percent (50%) or more of the stock of the Stockholder or any of its Subsidiaries or (ii) all or substantially all of the assets of the Stockholder or any of its Subsidiaries, from engaging in the Restricted Business if such Person actively engaged in the Restricted Business prior to the date such Person first discusses any such acquisition with the Stockholder or any of its Subsidiaries; provided, however, that nothing herein will be deemed to prevent any Restricted Person from acquiring through market purchases and owning, solely as an investment, less than one percent (1%) in the Stockholder and its direct and indirect Subsidiaries shall continue to be bound by all aggregate of the restrictions contained in this equity securities of any issuer, other than Buyer, whose shares are registered under Section 4.6. The passive ownership by the Stockholder 12(b) or its Affiliates, of not more than three percent (3%Section 12(g) of the shares of capital stock of Exchange Act, as amended, and are listed or admitted for trading on any corporation having a class of equity securities actively traded on a United States national securities exchange or are quoted on any system of automated dissemination of quotations of securities prices in common use, so long as such Restricted Person is not directly or indirectly a member of any "control group" (within the over-the-counter market shall not meaning of the rules and regulations of the SEC) or any such issuer, other than Buyer; (ii) whether for a Restricted Person's own account or for the account of another Person, solicit any Person that is or was a customer of any Entity, Buyer or any Subsidiary or Affiliate of any Entity or Buyer; (iii) whether for a Restricted Person's own account or the account of any other Person, solicit, employ or otherwise engage as an employee, independent contractor, agent or otherwise, any Person who is or was an employee, independent contractor, agent or otherwise engaged with any Entity, Buyer or any Subsidiary or Affiliate of any Entity or Buyer to terminate his, her or its employment, engagement or relationship with any Entity, Buyer or any Subsidiary or Affiliate of any Entity or Buyer; (iv) at any time interfere with any Entity's or Buyer's relationship with any Person, including any Person who was an employee, contractor, supplier, agent or customer of any Entity, Buyer or any Subsidiary or Affiliate of any Entity or Buyer, including, without limitation, soliciting, encouraging, advising or influencing such Person(s) to discontinue or reduce the extent of such relationship; (v) disparage any Entity, Buyer, or any of their Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents; or (vi) divulge, communicate, use to the detriment of any Entity, Buyer or any Subsidiary or Affiliate of any Entity or Buyer or for the benefit of any other Person(s), or misuse in any way, any confidential information or trade secrets pertaining to any Entity, Buyer or any Subsidiary or Affiliate of any Entity or Buyer.
(c) Each Restricted Person acknowledges that the injury that would be deemed, in and suffered by Buyer as a result of itself, to violate a breach of the prohibitions provisions of this Section 4.6(a)6.04 would be irreparable and that the award of monetary damages for such breach would be an inadequate remedy. Consequently, Buyer will have the right, in addition to, and not in limitation of, any other rights it may have, to obtain injunctive relief to restrain any breach or threatened breach or otherwise to specifically enforce any provisions of this Section 6.04, and Buyer will not be obligated to post bond or other security in seeking such relief.
(bd) Except for the right The covenants set forth in this Section 6.04 will be deemed and construed as a separate agreement independent of the Stockholder to solicit any other provisions of this Agreement or any other agreement between Buyer and attempt to hire the individuals listed on Schedule 4.6 hereto prior to the Closing, the Stockholder covenants and agrees that, for a period Restricted Person or any Affiliate of four a Restricted Person. The existence of any claim or cause of action by a Restricted Person (4) years following the Closing Date, it will not, either directly or indirectly), employwhether predicated on this Agreement or otherwise, hirewill not constitute a defense to the enforcement by Buyer of the covenants of this Section 6.04.
(e) For purposes of this Section 6.04, engage "Competitive Business" means (i) the interstate or be associated withintrastate transportation of freight by truck (motor carrier) and/or arranging for the interstate or intrastate transportation of freight by truck (brokerage), in each case using dry van, flat bed, or attempt to employrefrigerated trailers, hireand specifically including any business conducted by any Entity or Subsidiary or Affiliate thereof, engage or be associated withBuyer, or permit any business organization directly Buyer’s Subsidiaries or indirectly controlled by the Stockholder Affiliates as of or any of its Affiliates to employ, hire, engage or be associated with, or attempt to employ, hire, engage or be associated with, any person who was employed by, or acted as a sales representative for, the Companies during the twelve within six (126) months prior to the Closing Date and (ii) any business in which any Entity, or Subsidiary or Affiliate of any Entity, the Buyer, or any Subsidiary or Affiliate of the Buyer, is engaged at or within six (6) months prior to the time the applicable Restricted Person’s employment with any time after Entity or Subsidiary or Affiliate thereof, terminates (or the Closing Date, without if the prior written consent of the Purchaser (which consent may be granted or withheld in the sole discretion of the Purchaser).
(c) The Stockholder covenants and agrees that it will not, at any time following the Closing Date, disclose, directly or indirectly, or make available to any Person, or in any manner use for its own benefit, any confidential information or trade secrets relating to the businesses, operations, assets or properties of the Purchaser, the Companies or their Subsidiaries (collectively, the "GROUP"Restricted Person has not been such an employee), includingwhich may include, without limitation, any extension of any business strategiesdescribed in clause (e)(i). In addition, operating plansfor purposes of the Agreement, acquisition strategies (including A) "Restricted Person" means each of the identities Company Managers (acting directly or indirectly) and the Company Employees (acting directly or indirectly), (B) "Restricted Period" means (1) with respect to each Company Employee, the five (5)-year anniversary of the Closing Date and (2) with respect to each of the Company Managers, the longer of (x) the ten (10)-year anniversary of the Closing Date and (y) three (3) years from the date his employment with Buyer, any other information concerning) possible acquisition candidates), financial information (pro forma or otherwise), market analysis, acquisition terms and conditions, personnel information, product information, sources of leads and methods of obtaining new business, know-how, customer lists and relationships, vendor lists, underwriting strategies and methods Entity or any other methods of doing and operating the business of the Group, their Subsidiaries or other non-public proprietary and confidential information relating to the Group ("Confidential Information"), except to the extent that such information (i) is obtained from a third party whom the Stockholder does not have any reason to believe is bound by a duty of confidentiality, (ii) relates to information that is or becomes generally known to the public other than as a result of a breach thereof or (iii) is required to be disclosed by law (including without limitation any federal regulations) or judicial or administrative process (in which case prior to such disclosure the disclosing party shall promptly provide prior written notice of such required disclosure to the Purchaser in order to afford the Purchaser the opportunity to seek an appropriate protective order preventing such disclosure)Affiliates ceases.
(d) The Stockholder acknowledges and agrees that a breach by it or its Affiliates of any of the provisions of this Section 4.6 will cause irreparable harm and damage to the Purchaser and the Companies and that, in the event of such breach, the Purchaser shall have, in addition to any and all remedies at law, the right to an injunction, specific performance or other equitable relief to prevent the violation of the obligations of the Stockholder or its Affiliates hereunder without the necessity of proving such irreparable harm or damage or the inadequacy of remedies at law and without the necessity of posting any bond.
(e) The Stockholder acknowledges and agrees that each provision of this Section 4.6 shall be treated as a separate and independent clause, and the unenforceability of any one clause shall in no way impair the enforceability of any of the other clauses herein. Furthermore, if one or more of the provisions contained in this Section 4.6 shall for any reason be held to be excessively broad as to geographical scope, duration, activity or otherwise so as to be unenforceable at law, such provision or provisions shall be construed by the appropriate judicial body by limiting and reducing it or them, as the case may be, so as to be enforceable to the maximum extent compatible with the applicable law as it shall then appear.
Appears in 1 contract
Sources: Acquisition and Merger Agreement (Heartland Express Inc)
Non-Competition, Non-Solicitation and Non-Disclosure. (a) As part of the consideration for the transactions contemplated by this Agreement, the Stockholder Seller covenants and agrees that, for a period of four five (45) years following the Closing Date, it will not, either directly or indirectly, alone or as a partner, joint venturer, officer, director, employee, lender, consultant, agent, independent contractor, stockholder or otherwise, or knowingly permit any company or business organization directly or indirectly controlled by it Seller or any of its Affiliates to, engage in the Restricted Business (as defined in Section 9.16 hereof) anywhere in the United States or any foreign country. In order to avoid any doubt, uncertainty or ambiguity, this Section 4.6(a) shall apply to prohibit the Stockholder and its Affiliates from engaging in any other business or activity included in the definition of "Restricted Business" in which the Stockholder or its Affiliates were engaged at any time during the two (2) year period preceding the Closing Date. Notwithstanding the foregoing, this Section 4.6(a) shall not preclude any Person that acquires (i) fifty percent (50%) or more of the stock of the Stockholder or any of its Subsidiaries or (ii) all or substantially all of the assets of the Stockholder or any of its Subsidiaries, from engaging in the Restricted Business if such Person actively engaged in the Restricted Business prior to the date such Person first discusses any such acquisition is competitive with the Stockholder or any of its Subsidiaries; provided, however, that the Stockholder and its direct and indirect Subsidiaries shall continue to be bound business conducted by all of the restrictions contained in this Section 4.6Buyer. The passive ownership by the Stockholder or its Affiliates, Seller of not more than three one percent (31%) of the shares of capital stock of any corporation having a class of equity securities actively traded on a national securities exchange or in the over-the-counter market shall not be deemed, in and of itself, to violate the prohibitions of this Section 4.6(a)paragraph. In addition, Seller is contemporaneously herewith delivering to Buyer non-disclosure agreements (the "Non-Disclosure Agreements") in favor of Buyer from each of Seller's employees, other than ▇▇▇▇ ▇▇▇▇▇▇▇ and Ori Pessach, the form of which is annexed hereto as Exhibit A. Seller and Costilo each covenants and agrees to use its best efforts to deliver to Buyer Non-Disclosure Agreements executed by each of ▇▇▇▇ ▇▇▇▇▇▇▇ and Ori Pessach within thirty (30) days following the Closing.
(b) Except for the right of the Stockholder to solicit and attempt to hire the individuals listed on Schedule 4.6 hereto prior to the Closing, the Stockholder Seller covenants and agrees that, for a period of four five (45) years following the Closing Date, it will not, either directly or indirectly, employ, hire, engage or be associated with, or attempt to employ, hire, engage or be associated with, or knowingly permit any company or business organization directly or indirectly controlled by the Stockholder Seller or any of its Affiliates to employ, hire, engage or be associated with, or attempt to employ, hire, engage or be associated with, any person who was employed by, or acted as a sales representative for, the Companies by Seller during the twelve six (126) months prior to the Closing Date or is employed by Buyer at any time after the Closing Date, without the prior written consent of the Purchaser (which consent may be granted or withheld in the sole discretion of the Purchaser).
(c) The Stockholder Seller covenants and agrees that it will not, at any time following the Closing Date, disclose, directly or indirectly, or make available to any Personperson, or in any manner use for its own benefit, any confidential information or trade secrets relating to Seller, Buyer or the businessesBusiness, operationsor any information concerning Seller's or Buyer's financial condition, assets or properties of the Purchaserprospects, the Companies or their Subsidiaries (collectivelycustomers, the "GROUP")licensees, including, without limitation, business strategies, operating plans, acquisition strategies (including the identities of (and any other information concerning) possible acquisition candidates), financial information (pro forma or otherwise), market analysis, acquisition terms and conditions, personnel information, product informationsuppliers, sources of leads and methods of developing products, obtaining new business, know-how, customer lists manufacturing and relationships, vendor lists, underwriting strategies and distribution methods or any other methods of doing and operating the business of the Group, or other non-public proprietary and confidential information relating to the Group ("Confidential Information")Business, except to the extent that such information (i) is obtained from a third party whom the Stockholder does not have any reason to believe is bound by a duty matter of confidentiality, (ii) relates to information that is public knowledge or becomes generally known to the public other than as a result of a breach thereof or (iii) is required to be disclosed by law (including without limitation any federal regulations) or judicial or administrative process (in which case prior to such disclosure the disclosing party shall promptly provide prior written notice of such required disclosure to the Purchaser Buyer in order to afford the Purchaser Buyer the opportunity to seek an appropriate protective order preventing such disclosure).
(d) The Stockholder Seller acknowledges and agrees that a breach by it or its Affiliates of any of the provisions of this Section 4.6 6.4 will cause irreparable harm and damage to the Purchaser and the Companies Buyer and that, in the event of such breach, the Purchaser Buyer shall have, in addition to any and all remedies at law, the right to an injunction, specific performance or other equitable relief to prevent the violation of the obligations of the Stockholder or its Affiliates hereunder Seller hereunder, without the necessity of proving such irreparable harm or damage or the inadequacy of remedies at law and without the necessity of posting any bond.
(e) The Stockholder Seller acknowledges and agrees that each provision of this Section 4.6 6.4 shall be treated as a separate and independent clause, and the unenforceability of by any one clause shall in no way impair the enforceability of any of the other clauses herein. Furthermore, if one or more of the provisions contained in this Section 4.6 6.4 shall for any reason be held to be excessively broad as to geographical scope, duration, activity or otherwise so as to be unenforceable at law, such provision or provisions shall be construed by the appropriate judicial body by limiting and reducing it or them, as the case may be, so as to be enforceable to the maximum extent compatible with the applicable law Law as it shall then appear.
Appears in 1 contract
Non-Competition, Non-Solicitation and Non-Disclosure. (a) As The parties hereto have negotiated the non-competition and non-solicitation provisions contained in this Section 6.04 as an integral part of the consideration for transactions contemplated under this Agreement. Each Restricted Person acknowledges that he or she is a Seller or a beneficiary of a Seller and will receive substantial benefits from the payment of the Aggregate Closing Consideration and the performance of other obligations hereunder by Buyer (and the Company after the Closing) and acknowledges that Buyer is willing to pay the Aggregate Closing Consideration and proceed with the transactions contemplated hereby because of the Company's customer, driver, contractor, employee and agent relationships, and that the same may be severely and irreparably harmed by competition from such Restricted Person. Each Restricted Person further acknowledges that Buyer would not have entered into this AgreementAgreement and consummated the transactions contemplated hereby without the non-competition, non-solicitation and non-disclosure provisions contained herein. The Restricted Persons agree that the Stockholder covenants non-competition, non-solicitation and non-disclosure provisions are reasonable and necessary to induce Buyer to enter into this Agreement and consummate the transactions contemplated hereby.
(b) In consideration of the Closing and the transactions contemplated hereby, but subject to the further provisions of this Section 6.04, each Restricted Person, severally and not jointly, agrees that, for a period of four the applicable Restricted Period (4as hereinafter defined) years following the Closing Date, it he or she will not, either and his or her respective Affiliates will not, directly or indirectlyindirectly through another Person, alone without the prior written consent of Buyer, which may be withheld in Buyer's sole and absolute discretion: (i) directly or indirectly through another Person engage or invest in, own, manage, operate, finance, control or participate in the ownership, management, operation, financing or control of, be employed by, serve as a partner, joint ventureran agent, officer, directordirector or consultant to, employeebe associated with or in any manner connected with, lender, consultant, agent, independent contractor, stockholder lend his or otherwise, or permit any business organization directly or indirectly controlled by it her name or any of its Affiliates similar name to, engage in the Restricted lend his or her credit or render services or advice to, any Competitive Business (as defined in Section 9.16 hereofhereinafter defined) anywhere in the United States or any foreign country. In order to avoid any doubtNorth America, uncertainty or ambiguity, this Section 4.6(a) shall apply to prohibit the Stockholder and its Affiliates from engaging in any business or activity included in the definition of "Restricted Business" in which the Stockholder or its Affiliates were engaged at any time during the two (2) year period preceding the Closing Date. Notwithstanding the foregoing, this Section 4.6(a) shall not preclude any Person that acquires (i) fifty percent (50%) or more of the stock of the Stockholder or any of its Subsidiaries or (ii) all or substantially all of the assets of the Stockholder or any of its Subsidiaries, from engaging in the Restricted Business if such Person actively engaged in the Restricted Business prior to the date such Person first discusses any such acquisition with the Stockholder or any of its Subsidiaries; provided, however, that nothing herein will be deemed to prevent any Restricted Person from acquiring through market purchases and owning, solely as an investment, less than two percent (2%) in the Stockholder and its direct and indirect Subsidiaries shall continue to be bound by all aggregate of the restrictions contained in this equity securities of any issuer, other than Buyer, whose shares are registered under Section 4.6. The passive ownership by the Stockholder 12(b) or its Affiliates, of not more than three percent (3%Section 12(g) of the shares of capital stock of Exchange Act, as amended, and are listed or admitted for trading on any corporation having a class of equity securities actively traded on a United States national securities exchange or are quoted on any system of automated dissemination of quotations of securities prices in the over-the-counter market shall common use, so long as such Restricted Person is not be deemed, in and of itself, to violate the prohibitions of this Section 4.6(a).
(b) Except for the right of the Stockholder to solicit and attempt to hire the individuals listed on Schedule 4.6 hereto prior to the Closing, the Stockholder covenants and agrees that, for a period of four (4) years following the Closing Date, it will not, either directly or indirectly, employ, hire, engage or be associated with, or attempt to employ, hire, engage or be associated with, or permit any business organization directly or indirectly controlled by a member of any "control group" (within the Stockholder meaning of the rules and regulations of the SEC) or any such issuer, other than Buyer; (ii) whether for a Restricted Person's own account or for the account of its Affiliates to employanother Person, hire, engage solicit any Person that is or be associated with, or attempt to employ, hire, engage or be associated with, any person who was employed by, or acted as a sales representative for, the Companies during in the twelve (12) months prior to solicitation a customer of the Closing Date Company, Buyer or any Subsidiary or Affiliate of the Company or Buyer; (iii) whether for a Restricted Person's own account or the account of any other Person, solicit, employ or otherwise engage as an employee, independent contractor, agent or otherwise, any Person who is or was at any time after within the Closing Dateprevious twelve (12) months an employee, without independent contractor, agent or otherwise engaged with the prior written consent Company, Buyer or any Subsidiary or Affiliate of the Purchaser (which consent may be granted Company or withheld in Buyer to terminate his, her or its employment, engagement or relationship with the sole discretion Company, Buyer or any Subsidiary or Affiliate of the Purchaser).
Company or Buyer; provided, that the Restricted Person will not be prohibited from employing or engaging, for such Restricted Person’s own account or for the account of another Person, an employee, independent contractor or agent of the Company, Buyer or any Subsidiary or Affiliate thereof who either (cA) The Stockholder covenants and agrees that it will notwas terminated by the Company, Buyer or any Subsidiary or Affiliate of the Company or Buyer or (B) responds to advertisements of general solicitation not specifically directed at or targeting such Persons provided such Person was not employed by the Company, Buyer or any Subsidiary or Affiliate thereof in a sales, marketing, driving, recruiting or safety capacity; (iv) at any time following interfere with the Closing Date, disclose, directly Company's or indirectly, or make available to Buyer's relationship with any Person, including any Person who was at any time within the previous twelve (12) months an employee, contractor, supplier, agent or customer of the Company, Buyer or any Subsidiary or Affiliate of the Company or Buyer, including, without limitation, soliciting, encouraging, advising or influencing such Person(s) to discontinue or reduce the extent of such relationship; (v) disparage the Company, Buyer, or any of their Subsidiaries, Affiliates, stockholders, directors, officers, employees or agents; or (vi) divulge, communicate, use to the detriment of the Company, Buyer or any Subsidiary or Affiliate of the Company or Buyer or for the benefit of any other Person(s), or misuse in any manner use for its own benefitway, any confidential information or trade secrets relating pertaining to the businessesCompany, operations, assets Buyer or properties any Subsidiary or Affiliate of the Purchaser, Company or Buyer.
(c) Each Restricted Person acknowledges that the Companies or their Subsidiaries (collectively, the "GROUP"), including, without limitation, business strategies, operating plans, acquisition strategies (including the identities of (and any other information concerning) possible acquisition candidates), financial information (pro forma or otherwise), market analysis, acquisition terms and conditions, personnel information, product information, sources of leads and methods of obtaining new business, know-how, customer lists and relationships, vendor lists, underwriting strategies and methods or any other methods of doing and operating the business of the Group, or other non-public proprietary and confidential information relating to the Group ("Confidential Information"), except to the extent injury that such information (i) is obtained from a third party whom the Stockholder does not have any reason to believe is bound would be suffered by a duty of confidentiality, (ii) relates to information that is or becomes generally known to the public other than Buyer as a result of a breach thereof of the provisions of this Section 6.04 would be irreparable and that the award of monetary damages for such breach would be an inadequate remedy. Consequently, Buyer will have the right, in addition to, and not in limitation of, any other rights it may have, to obtain injunctive relief to restrain any breach or (iii) is required threatened breach or otherwise to specifically enforce any provisions of this Section 6.04, and Buyer will not be disclosed by law (including without limitation any federal regulations) obligated to post bond or judicial or administrative process (other security in which case prior to seeking such disclosure the disclosing party shall promptly provide prior written notice of such required disclosure to the Purchaser in order to afford the Purchaser the opportunity to seek an appropriate protective order preventing such disclosure)relief.
(d) The Stockholder acknowledges covenants set forth in this Section 6.04 will be deemed and agrees that construed as a breach by it or its Affiliates separate agreement independent of any of the other provisions of this Section 4.6 Agreement or any other agreement between Buyer and a Restricted Person or any Affiliate of a Restricted Person. The existence of any claim or cause of action by a Restricted Person (directly or indirectly), whether predicated on this Agreement or otherwise, will cause irreparable harm and damage not constitute a defense to the Purchaser and the Companies and that, in the event of such breach, the Purchaser shall have, in addition to any and all remedies at law, the right to an injunction, specific performance or other equitable relief to prevent the violation enforcement by Buyer of the obligations covenants of the Stockholder or its Affiliates hereunder without the necessity of proving such irreparable harm or damage or the inadequacy of remedies at law and without the necessity of posting any bondthis Section 6.04.
(e) The Stockholder acknowledges and agrees that each provision For purposes of this Section 4.6 shall be treated as a separate and independent clause6.04, "Competitive Business" means (i) the interstate or intrastate transportation of freight by truck (motor carrier) and/or arranging for the interstate or intrastate transportation of freight by truck (brokerage), in each case using dry van, flat bed, or refrigerated trailers, and the unenforceability of specifically including any one clause shall in no way impair the enforceability of any of the other clauses herein. Furthermore, if one or more of the provisions contained in this Section 4.6 shall for any reason be held to be excessively broad as to geographical scope, duration, activity or otherwise so as to be unenforceable at law, such provision or provisions shall be construed business conducted by the appropriate judicial body by limiting and reducing it Company, Buyer, or them, Buyer’s Affiliates as the case may be, so as to be enforceable of or within six months prior to the maximum extent compatible with the applicable law as it shall then appear.Closing Date and (ii)
Appears in 1 contract