Non-Competition, Non-Solicitation and Non-Disclosure. (a) For a period of five (5) years from the Closing Date, except as permitted in this Section 6.9, neither Seller nor any of its affiliates shall directly or indirectly (i) process, produce or manufacture (in each case, whether directly or indirectly or through co-packers and whether independently or with co-packers) value-added produce items, including packaged salads, salad kits, specialty salads, fresh-cut vegetables and fresh-cut fruit for sale through any outlets, including grocery stores, supercenters or other outlets in the retail distribution channel and quick-service restaurant and other food service outlets, (ii) sell or provide equipment, processes or material for freshness extending atmosphere systems or (iii) own any interest in any business or Person engaged in any of the foregoing activities under clauses (i) or (ii) above. The restrictions set forth in this Section 6.9 shall not be construed to prohibit or restrict: (A) any minority equity investment by Seller or any of its affiliates in any person or entity in which Seller or its affiliates do not have the right to designate a controlling number of members of the board of directors (or similar governing body) of such entity, or in which Seller or its affiliates collectively hold not more than 10% of the outstanding voting securities; (B) the sale of produce items purchased by Seller from third parties on an arm's-length basis (including produce which has been processed) exclusively for resale (and not subject to further processing) to its foodservice customers; (C) any business activity that would otherwise violate this Section 6.9 that is carried on by an entity or business that is acquired by Seller or otherwise becomes an affiliate thereof, but only if, at the time of such acquisition, the revenues derived from such business by such entity or business constitute less than 10% of the gross revenues of such person or business; or (D) Seller's engaging in its foodservice distribution business as currently conducted. For a period of three (3) years from the Closing Date, neither Seller nor any of its affiliates will, without the prior written consent of Purchaser, solicit any Person listed in Section 6.9(a) of the Disclosure Schedule to terminate such Person's customer relationship with the Companies or the Subsidiaries or enter into a relationship or arrangement with a different company or business engaged in the produce processing business with respect to any value-added produce item currently supplied, or contemplated to be supplied (as set forth in Section 6.9(a) of the Disclosure Schedule), by the Companies or the Subsidiaries. (b) Except as set forth in Section 6.9(b) of the Disclosure Schedule, for a period of two (2) years from the Closing Date, neither Seller nor any of its affiliates will, without the prior written consent of Purchaser, employ any officer or managerial employee of the Companies or their Subsidiaries, unless such person has ceased to be an officer or managerial employee for at least six (6) months; provided, however, that the foregoing shall not prohibit any general solicitations of employment not directed to employees of the Companies or their Subsidiaries (including the placing of an advertisement or solicitation through an employment agency or executive search firm (provided that such employment agency or executive search firm is not directed, encouraged or advised by Seller or its affiliates to approach such officer or managerial employee) or prevent Seller or its affiliates from hiring any such person or any person who contacts Seller on his or her own initiative. (c) Seller agrees to treat any information in its possession concerning the Companies and their Subsidiaries (whether prepared by the Seller, its advisors or otherwise) based on, containing or otherwise reflecting such information, including any notes, memoranda, analyses, compilations, studies or other documents (herein collectively referred to as the "Confidential Material") in accordance with the provisions of this clause (c) and to take or abstain from taking certain other actions herein set forth. The term "Confidential Material" does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by Seller or its directors, officers, employees, agents, advisors, affiliates or representatives (including, without limitation, accountants, investment bankers and attorneys (such persons being collectively called "Representatives") in violation of this Agreement or (ii) becomes available to Seller on a non-confidential basis from a source other than Purchaser or its advisors, provided that such source is not, to Seller's knowledge after reasonable inquiry, bound by a confidentiality agreement with or other obligation of secrecy to Purchaser or another party. Seller hereby agrees that, except for such disclosures thereof as may be required by Law, the Confidential Material will be kept confidential by Seller and its Representatives and not disclosed to any other person and that it will not use any Confidential Material to benefit or further its own business activities; provided, however, that any disclosure of such information may be made to which Purchaser consents, in advance, in writing. Seller shall, as and when requested by Purchaser and at Purchaser's expense, use commercially reasonable efforts to enforce any confidentiality or non-disclosure agreement entered into with bidders and their representatives in connection with the auction process with respect to the Shares, including enforcing Purchaser's demands for the return or destruction of any material covered by such agreements in accordance with the terms thereof.
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Sources: Stock Purchase Agreement (Chiquita Brands International Inc), Stock Purchase Agreement (Performance Food Group Co)