Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that: (i) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and (ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participating, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market; (b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person: (A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates; (B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or (C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Products. (c) Except as may be required in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (Toymax International Inc)
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for For a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date (the “Restricted Period”), Sellers shall not, and expiring on the first to occur of (A) a breach by Toymax or the Buyer of shall not permit any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingto, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, officershareholder, member, employee, principal, agent, trustee or consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer), engaged in the business ownership of marketing or selling any less than 5% of the Protected Products. The foregoing provisions shall notoutstanding voting securities of any publicly-traded company); or (iii) cause, howeverinduce or encourage any material current client, prohibit the making of passive investments of five percent (5%) customer, supplier or less licensor of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its AffiliatesBusiness, or any other Person who currently has a material business relationship with whom the Buyer or its Affiliates shall have dealtBusiness, to terminate or modify any written such actual or oral agreement prospective relationship with respect to the Business. Notwithstanding the foregoing, and for the avoidance of doubt, Sellers will not solicit customers for sales of natural gas (other than compressed natural gas) or course electricity during the Restricted Period, provided that Sellers may continue to engage in the municipal electricity aggregation portion of dealing the Business to the extent {W5940181.1} necessary to satisfy Sellers’ existing commitments and thereafter to wind down such business in an orderly fashion. Nothing in this Section 6.07(a) shall be interpreted to prevent Sellers from soliciting customers for sales of compressed natural gas or products other than natural gas or electricity. In addition, during the Restricted Period, neither the Sellers nor any of their Affiliates shall acquire another entity that conducts the Restricted Business in the Territory unless (x) such Restricted Business accounts for less than 10% of the annual revenues of the acquired entity, (y) such Restricted Business is divested within twelve (12) months of the acquisition thereof and (z) in connection with such divestiture, Sellers or their applicable Affiliate give the Buyers a right of first offer to acquire such Restricted Business.
(b) During the Restricted Period, Sellers shall not, and shall not permit any of their Affiliates to, directly or indirectly, hire or solicit the Business Employees or those current employees of Buyers set forth in Schedule 6.07, or encourage any such employee to leave such employment; provided, that nothing in this Section 6.07(b) shall prevent Sellers or any of their Affiliates from hiring (i) any employee whose employment has been terminated by the applicable Buyer or its Affiliates(ii) after one year from the date of termination of employment, any employee whose employment has been terminated by the employee, or to otherwise interfere with the Buyer's relationships with such parties from engaging in any way; or
(C) influence or attempt to influence a supplier or customer general solicitation of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Productsemployment.
(c) Except as Sellers acknowledge that a breach or threatened breach of this Section 6.07 may give rise to irreparable harm to Buyers, for which monetary damages would not be an adequate remedy, and hereby agree that in the event of a breach or a threatened breach by Sellers of any such obligations, Buyers shall, in addition to any and all other rights and remedies that may be required 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 (without any requirement to post bond).
(d) Sellers acknowledge that the business restrictions contained in this Section 6.07 are reasonable and necessary to protect the legitimate interests of Buyers and constitute a material inducement to Buyers to enter into this Agreement and consummate the Buyer after transactions contemplated by this Agreement. In the Closingevent that any covenant contained in this Section 6.07 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 Seller maximum time, geographic, product or service or other limitations permitted by applicable Law. The covenants contained in this Section 6.07 and ▇'▇▇▇▇▇▇ each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not at invalidate or render unenforceable the remaining covenants or provisions hereof, and any time, directly such invalidity or indirectly, use unenforceability in any jurisdiction shall not invalidate or purport to authorize render unenforceable such covenant or provision in any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereofjurisdiction.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for For a period of seven (7) years commencing on the Closing Date and expiring on (the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"“Restricted Period”), they will Seller shall not, and shall cause its Affiliates not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingto, directly or indirectly, (i) engage in or assist any other Person in engaging in the Business; (ii) have an interest in any Person that engages directly or indirectly in the Business in any capacity, including as a partner, officershareholder, member, employee, consultant principal, agent, trustee, lender or otherwiseconsultant; or (iii) cause, own induce or operate encourage any business material actual or Personprospective client, payor, customer, supplier or otherwise become licensor of the Business (including any existing or be interested in, former client or associate with or render assistance to customer of Seller and any Person (other than the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on that becomes a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier client or customer of the Buyer or its AffiliatesBusiness after the Closing), or any other Person who has a material business relationship with whom the Buyer or its Affiliates shall have dealtBusiness, to terminate or modify any written such actual or oral agreement prospective relationship.
(i) Notwithstanding the other terms of Section 6.6(a), Seller may own, directly or course indirectly, solely as an investment, securities of dealing any Person traded on any national securities exchange if it is not a controlling Person of, or a member of a group which controls, such Person and does not, directly or indirectly, own 5% or more of any class of securities of such Person.
(ii) Notwithstanding the other terms of Section 6.6(a), during the Restricted Period, Seller may sell or license any Intellectual Property existing as of the Closing Date that is not a Purchased Intellectual Property Asset to any Person, provided, that Seller may not sell or license TruVue or any Excluded Intellectual Property Asset used in the conduct of the Business as currently conducted by Seller to any Person that has engaged or may engage in the Business unless such Person covenants in writing that it will not use TruVue or such Intellectual Property to compete with the Business during the Restricted Period; Seller shall be responsible to Buyer for any breach of such covenant by such Person.
(b) During the period commencing on the date hereof and ending on the last day of the Restricted Period, Seller shall not, and shall cause its Affiliates not to, directly or indirectly, hire or solicit any Transferred Employee or any person who was employed in the Business during the Restricted Period, or encourage any such employee to leave such employment or hire any such employee who has left such employment; provided that, nothing in this Section 6.6(b) shall prevent Seller or any of its Affiliates from hiring any former employee who has not been employed by Buyer (or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties ) for a period in any way; or
excess of six (C6) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Productsmonths.
(c) Except as Seller acknowledges that it would be difficult to fully compensate Buyer for damages resulting from any breach by them of the provisions of this Section 6.6. Accordingly, in the event of any actual or threatened breach of such provisions, Buyer shall (in addition to any other remedies which it may have) be entitled to seek temporary and/or permanent injunctive relief to enforce such provisions and recover attorneys’ fees and costs for same, if Buyer prevails, and such relief may be required in granted without the business necessity of proving actual damages or the inadequacy of money damages, or posting bond. In the event that any action, suit or proceeding shall be brought against Seller for the enforcement of this Section 6.6, the calculation of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ Restricted Period shall not at include the period of time commencing with the filing of the action, suit or proceeding to enforce this Section 6.6 through the date of the final judgment or final resolution (including all appeals, if any) of such action, suit or proceeding.
(d) Seller acknowledges that the restrictions contained in this Section 6.6 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. In the event that any covenant contained in this Section 6.6 should ever be adjudicated to exceed the time, directly geographic, product or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress service or other identifying words 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 images which service or other limitations permitted by applicable Law. The covenants contained in this Section 6.6 and each provision hereof 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 same as remaining covenants or similar to those used currently provisions hereof, and any such invalidity or unenforceability in the past by the Seller uniquely any jurisdiction shall not invalidate or render unenforceable such covenant or provision in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereofother jurisdiction.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure For a period of three years following the Buyer that the Buyer will retain the value of the AssetsClosing, the Seller shall not, and ▇'▇▇▇▇▇▇ agree thatshall cause its Subsidiaries not to, directly or indirectly through any Person or contractual arrangement:
(i) for engage in, or consult or assist any third party engaging in, any business, worldwide, that manufactures, produces or supplies products or services of the kind licensed, manufactured, produced, supplied or maintained by the Business as currently conducted or that could be used by a period commencing on the Closing Date and expiring on the first to occur of national or regional number portability administration center (A) a breach by Toymax “Competing Business”), or the Buyer of perform management, executive or supervisory functions with respect to, own, operate, join, control, render financial assistance to, exert any influence upon, participate in, render services or advice to, or allow any of their material obligations to its officers or employees (while employed by the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60its Subsidiaries) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall to be referred to connected as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participating, directly or indirectly, as a partner, an officer, employee, consultant or otherwisepartner, own or operate any business or Personmember, or otherwise become or be interested in, or associate with or render assistance to any Person stockholder (other than the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of a less than five percent (5%) stockholder in a publicly held company), consultant or less of otherwise with, any Person engaged in a Competing Business; provided, that the stock of term “Competing Business” shall not include any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each business of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect its Subsidiaries insofar as it relates to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence those products or attempt services involving number searching, reservation, allocation, charging, number portability, SIM ordering and other SIM card information used solely to influence any Person operate the Seller’s subscriber profile activation and verification products or services; the Seller’s device activation, device management, and device personalization products and services; and the Seller’s mediation products and services (other than employees of collectively, the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
“Seller’s Service Activation/Mediation Products and Services”); (B) influence or attempt to influence a supplier or customer collection and processing of the Buyer or its Affiliatesbilling records, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealtincluding call detail records, for the purpose a variety of offering or selling any of the Protected Products.
(c) Except as may be required in the business of the Buyer after the Closingpurposes, the Seller including rating, billing, fraud prevention and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely analytics in connection with the Funnoodle Product LineSeller’s Service Activation/Mediation Products or Services; (C) collection and processing of subscriber and service profile information from network and business systems, whether for the purposes of comparing, auditing, reconciling and synchronizing such data between systems used solely in connection with the Seller’s Service Activation/Mediation Products or Services; and (D) management of individual numbers that are available for, or have been allocated to, a device, but not such use would managing the overall number inventory, through and in connection with the Seller’s Service Activation/Mediation Products and Services (collectively “Permitted Business”);
(ii) solicit, recruit or hire any person who at any time on or after the date of this Agreement is a Transferring Employee; provided, that the foregoing shall not prohibit (A) a general solicitation to the public or general advertising or similar methods of solicitation by search firms not specifically directed at Transferring Employees or (B) the Seller or any of its Subsidiaries from soliciting, recruiting or hiring any Transferring Employee who has ceased to be in a business competitive with that of employed or retained by the Buyer or any of its Subsidiaries for at least nine months; provided, that the restriction set forth in this subsection (ii) shall not apply with regards to any Transferring Employee who has been terminated by the Buyer or Affiliatesits Subsidiaries without cause.
(iii) approach or seek Competing Business from any Customer (as hereinafter defined), refer Competing Business from any Customer to any Person or be paid commissions based on Competing Business sales received from any Customer by any Person. As used hereinFor purposes of this Section 5.5, the phrase "competitive business" term “Customer” means any business competitive with Person to which (A) the type Seller or any of business engaged in by its Subsidiaries provided products or services of the Seller, Business or (B) the Buyer or any of their its Subsidiaries provided products or Affiliates services similar to those offered by the Business, in each case during the 36-month period prior to the time at which any determination shall be made that any such Person is a Customer; provided, that the date hereof.foregoing shall not prohibit any referral of business by the Seller to the Buyer or the Buyer’s Affiliates; provided, further, that for the avoidance of doubt, nothing in Section 5.5(a)(i) or this Section 5.5(a)(iii) shall restrict the Seller or its Subsidiaries from seeking Permitted Business from a Customer, using Customer lists or other Customer information learned by the Seller in pursuing the Business to seek such Permitted Business, and engaging in Permitted Business with a Customer; or
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Except as permitted by this Section 5.9, for a period of four (4) years commencing on the Closing Date (the “Restricted Period”), Seller shall not, and ▇'▇▇▇▇▇▇ acknowledge shall not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in order the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to assure or after the Buyer that the Buyer will retain the value date of this Agreement) between any member of the AssetsCompany Group and customers or suppliers of any member of the Company Group. Notwithstanding the foregoing, nothing in this Agreement shall preclude, prohibit or restrict Seller or its Affiliates from any of the Seller and ▇'▇▇▇▇▇▇ agree thatfollowing:
(i) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingowning, directly or indirectly, solely as a partneran investment, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to securities of any Person (other than the Buyer), engaged in the business of marketing or selling traded on any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of the if Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will is not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any a controlling Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliatesof, or employa member of a group which controls, consult or otherwise retainsuch Person and does not, directly or indirectly, own 1% or more of any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliatesclass of securities of such Person;
(Bii) influence or attempt engaging in any manner in any business activity that would otherwise violate this Section 5.9 to influence the extent such business activity is conducted on the date hereof through one of Seller’s Affiliates that is not a supplier or customer member of the Buyer Company Group (each, an “Existing Business”) and the gross revenue from the competing portion of such Existing Business does not exceed the lesser of 15% of the aggregate revenue of such Existing Business or its Affiliates, $20,000,000.00 for the fiscal year immediately preceding the measurement date;
(iii) engaging in any manner in any business activity that would otherwise violate this Section 5.9 that is acquired from any Person (an “After-Acquired Business”) or is carried on by any Person that is acquired by Seller or any other Person with whom the Buyer or of its Affiliates shall have dealtin each case after the Closing (an “After-Acquired Company”) provided that, with respect to terminate this clause (3), the gross revenue from the competing portion of such After-Acquired Business or modify After-Acquired Company does not exceed the lesser of 15% of the aggregate revenue of any written such After-Acquired Business or oral agreement After-Acquired Company or course of dealing with $20,000,000.00 for the Buyer or its Affiliates, or to otherwise interfere with fiscal year immediately preceding the Buyer's relationships with such parties in any waymeasurement date; or
(Civ) influence or attempt to influence a supplier or customer providing consulting services of the Buyer type provided by CBIZ KA Consulting Services, LLC, as described in reasonable detail in Section 5.9 of the Disclosure Schedule, on the date of this Agreement to the healthcare industry.
(b) During the Restricted Period, Seller shall not, and shall not permit any of its Affiliates to, directly or its Affiliatesindirectly, hire or solicit any employee of a member of the Company Group or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 5.9(b) shall prevent Seller or any other Person with whom the Buyer or of its Affiliates shall have dealt, for the purpose of offering or selling from hiring (i) any employee whose employment has been terminated by a member of the Protected ProductsCompany Group or (ii) after 180 days from the date of termination of employment, any employee whose employment has been terminated by the employee.
(c) Except as may be required in with respect to any activity permitted pursuant clauses (1), (2), (3) or (4) of Section 5.9(a), during the business of the Buyer after the ClosingRestricted Period, the Seller shall not, and ▇'▇▇▇▇▇▇ shall not at permit any timeof its Affiliates to, directly or indirectly, use solicit or purport entice, or attempt to authorize solicit or entice, any Person clients or customers of any member of the Company Group or potential clients or customers of any member of the Company Group for purposes of diverting their business or services from a member of the Company Group.
(d) Seller acknowledges that a breach or threatened breach of this Section 5.9 would give rise to use irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Seller of any namesuch obligations, ▇▇▇▇Buyer shall, logoin addition to any and all other rights and remedies that may be available to it in respect of such breach, trade dress be entitled to 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 (without any requirement to post bond).
(e) Seller acknowledges that the restrictions contained in this Section 5.9 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. In the event that any covenant contained in this Section 5.9 should ever be adjudicated to exceed the time, geographic, product or service, or other identifying words 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 images which service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.9 and each provision hereof 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 same as remaining covenants or similar to those used currently provisions hereof, and any such invalidity or unenforceability in the past by the Seller uniquely any jurisdiction shall not invalidate or render unenforceable such covenant or provision in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with any other jurisdiction.
(f) The parties hereto agree that it is their intent that each Member of the Buyer or any Company Group is and shall be a third party beneficiary of its Subsidiaries or Affiliates. As used hereinthe terms, the phrase "competitive business" means any business competitive with the type conditions, provisions and restrictions of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereofthis Section 5.9.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Seller Employee agrees that he will not during the period he is employed by the Company under this Agreement or otherwise and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingnine months thereafter, directly or indirectly, (a) solicit the employment of, or encourage to leave the employment of GPS or the Company or any of their respective subsidiaries, any person who is now employed by GPS or the Company or any of their respective subsidiaries, (b) hire any employee or former employee of GPS or the Company or any of their respective subsidiaries, or (c) compete with or be engaged in the same business as GPS or the Company or any of their respective subsidiaries, or be employed by, or act as consultant or lender to, or be a partnerdirector, officer, employee, consultant owner, or partner of, any business or organization which, during the period Employee is employed by the Company under this Agreement or otherwise, own directly or operate any business or Person, or otherwise become or be interested in, or associate indirectly competes with or render assistance to any Person (other than the Buyer), is engaged in the same business of marketing as GPS or selling the Company or any of their respective subsidiaries, except that in each case the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less this Section 7 will not be deemed breached merely because Employee owns not more than 1% of the outstanding common stock of any company a corporation, if, at the time of its acquisition by Employee, such stock is listed on a national securities exchange exchange, is reported on NASDAQ, or is regularly traded in the over-the-counter market;
market by a member of a national securities exchange; provided, however, that this Section 7 shall not apply if (bi) Each in breach of this Agreement, the Company shall terminate Employee's employment other than pursuant to Section 10(b) or 10(c) (it being understood that a purported termination pursuant to Section 10(b) or 10(c) which is disputed and finally determined not to have been proper shall be a termination by the Company in breach of this Agreement) or (ii) Employee shall terminate his employment for Good Reason (as hereinafter defined). If the Employment Period ends on June 30, 2006, the Company shall pay Employee during the period after the Employment Period that Employee is subject to this Section 7, provided that Employee is in full compliance with this Section 7, at the rate of his base annual salary received from the Company during the last year of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree thatEmployment Period, after giving effect payable at such intervals (at least monthly) as salaries are paid generally to the purchase executive officers of the Assets at the ClosingCompany, it which obligation shall cease after nine months or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, such earlier time as the case may beCompany, for in its or his own benefit or for sole discretion, releases Employee from the benefit provisions of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Productsthis Section 7.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereof.
Appears in 1 contract
Non-Competition; Non-Solicitation. 5.10.1 From and after the Closing Date and until the third anniversary thereof, Seller shall not, and Seller shall cause its Affiliates existing as of the Closing Date (which for the avoidance of doubt includes the Identified Affiliate) and its Subsidiaries not to, directly or indirectly, engage or participate in any Competing Business or own any interest in, manage, control, lend to or otherwise finance (other than ordinary trade terms), or participate in the ownership, management, control or financing of, or loan to, any Person engaged in any Competing Business, or provide consulting services to any Person engaged in any Competing Business.
5.10.2 Notwithstanding the foregoing, nothing in this Agreement shall prohibit or in any way limit Seller or its Affiliates from:
(i) being or becoming (a) The a passive owner of not more than 5% of the capital stock, voting stock or other equity interest of any Person engaged in a Competing Business or (b) subject, from and after the Closing Date and until the third anniversary thereof, to compliance with Section 5.10.3, acquiring, owning or operating, or conducting or engaging in any activity through, or entering into any agreement related to the foregoing with respect to, a Designated Company;
(ii) owning, operating, conducting or engaging in any manner in any businesses or activities as conducted or engaged in by Seller or its Affiliates (other than the Group Companies) as of the date of this Agreement, including the Excluded Businesses and ▇'▇all activities of National Beef Packing Company LLC and its Subsidiaries; or
(iii) owning and operating, conducting or engaging in the Korean Business from and after the date on which Seller has purchased Buyer’s equity interests in ▇▇▇▇▇ acknowledge that Korea LLC pursuant to Section 5.12 in order substantially the same manner as the Korean Business was operated, conducted and engaged in during the twelve months ending on June 30, 2017.
5.10.3 As soon as reasonably practicable prior to assure the Buyer that the Buyer will retain the value Seller or any of its Affiliates existing as of the AssetsClosing Date (which for the avoidance of doubt includes the Identified Affiliate) or its Subsidiaries (the “Designated Business Purchaser”) executing any binding agreement with respect to the acquisition of more than 5% of the capital stock, voting stock or other equity interest of a Designated Company pursuant to Section 5.10.2(i)(b) (a “Designated Acquisition”), Seller shall deliver notice of such Designated Acquisition to Buyer, and Buyer shall (unless waived by Buyer in writing) have the right to participate in such Designated Acquisition on equal terms with Seller, in which case Buyer and Seller shall negotiate in good faith the terms and ▇'▇▇▇▇▇▇ agree that:conditions upon which the parties shall jointly pursue such Designated Acquisition. If (i) Buyer notifies Seller of its intention to not pursue the Designated Acquisition with Designated Business Purchaser or (ii) Buyer and Seller do not reach an agreement within 30 days on terms and conditions pursuant to which they shall jointly pursue such Designated Acquisition, then Designated Business Purchaser shall be allowed to proceed alone with the Designated Acquisition.
5.10.4 In the event that Designated Business Purchaser completes a Designated Acquisition without Buyer, then from and after the Closing Date and until the third anniversary thereof,
(i) for a period commencing on Seller shall, within 30 days from closing of the Closing Date and expiring on the first Designated Acquisition, deliver notice to occur of (A) a breach by Toymax or the Buyer of any of their material obligations such event and shall cause the Designated Business Purchaser to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete comply with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); andSection 5.10.3.
(ii) Within 30 days of receipt of such notice, Buyer may request the Designated Business Purchaser to offer to Buyer the opportunity to purchase those portions of the Designated Business located within any Restricted Territory that constitute a Competing Business for a period commencing that Restricted Territory (an “Overlapping Operation”) and Designated Business Purchaser shall provide Buyer with reasonable information as it has available regarding the nature of the Overlapping Operation (subject to appropriate confidentiality being agreed and any competitive or privilege concern on the Closing Date sharing of information).
(iii) Each of Buyer and expiring on the first to occur Designated Business Purchaser shall, within 30 days of (A) a breach delivery by Toymax or the Buyer of any the request set forth in paragraph (ii) above, deliver to each other its good faith estimate of their material obligations the fair market value (the “Fair Value”) of the Overlapping Operation as of the closing date of the Designated Acquisition.
(iv) If the higher of the estimated Fair Values as determined by the parties is equal to or less than 110% of the lower of the estimated Fair Values as determined by the parties, then the Fair Value shall be finally determined to be equal to (i) (x) the higher estimate plus (y) the lower estimate divided by (ii) two.
(v) If the higher of the estimated Fair Values as determined by the parties is greater than 110% of the lower of the estimated Fair Values as determined by the parties, then the parties shall jointly designate an investment bank that has not provided substantial services to Buyer or Seller in the previous 3 years (the “Resolving Firm”) to determine its estimate of the Fair Value, such estimate of Fair Value to be delivered by the Resolving Firm to the Seller parties no later than 30 days after such Resolving Firm’s engagement.
(vi) If the Resolving Firm’s estimate of Fair Value is equal to or ▇'▇▇▇▇▇▇ under any between the estimate of Fair Values made by the initial valuation of the Transaction Documentsparties, which breach then the Resolving Firm’s estimate of the Fair Value shall be the finally determined Fair Value. If the Resolving Firm’s estimate of Fair Value is not cured within sixty (60) days after notice thereof from between the Seller and ▇'▇▇▇▇▇▇initial estimate of Fair Values made by the parties, or (B) then the date which is the later of three (3) years from the Closing Date or one finally determined Fair Value shall be equal to (1) year (x) the Resolving Firm’s estimate of Fair Value plus (y) the initial estimate of Fair Value by the party whose estimate was closest to the Fair Value determined by the Resolving Firm divided by two.
(vii) The determination of estimated Fair Value as set forth above shall be final and binding on all parties. In making their determination, each of the parties and the Resolving Firm shall rely solely on written submissions made by Buyer and Designated Business Purchaser.
(viii) Upon determination of the Fair Value, the sale of the Overlapping Operation shall proceed subject to any necessary regulatory approvals and neither Seller nor its Affiliates (including the Designated Business Purchaser) shall be required to make any representations or warranties with respect to the Overlapping Operation other than (i) with respect to its ownership and (ii) any representations and warranties as to Designated Business Purchaser’s period of ownership that are similar to the representations and warranties Designated Business Purchaser received from the date seller in the Management Services Agreement is terminated (such period shall be referred Designated Acquisition with respect to as the "SECOND COVENANT PERIOD")Designated Company, they will not compete with adjusted appropriately to reflect the size and scope of the Overlapping Operation relative to the Designated Company.
5.10.5 Without limiting any other remedy available to Buyer and its Subsidiaries and Affiliates at the time in questionhereunder or under applicable Law, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes event Seller or any of this Section 5.7, the term compete shall include acting or participatingits Affiliates, directly or indirectly, as acquires any company or business that includes a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person Competing Business in the Restricted Territory (other than the Buyera Designated Company which is addressed solely by Section 5.10.2(i)(b)), engaged in Buyer may, within 30 days of closing of such acquisition, require Seller or such of its Affiliates to sell the portion of such company or business of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on that represents a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services Competing Business to Buyer at a price equal to the time of Closing) Resale Price, subject to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during same terms and conditions set forth in the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose acquisition of offering such company or selling any business (in each case, adjusted appropriately to reflect the size and scope of such Competing Business relative to such company or business). “Resale Price” means the Protected Products.
(c) Except as may be required in the business of the Buyer after the Closing, the purchase price paid by Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries Affiliates for such company or Affiliates. As used hereinbusiness, multiplied by a fraction equal to (i) the phrase "competitive EBITDA of such Competing Business, divided by (ii) the EBITDA of such company or business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereof.
Appears in 1 contract
Non-Competition; Non-Solicitation. Employee and Company agree to the non-competition and non-solicitation provisions of this Article VII (i) as part of the consideration for the compensation and benefits to be paid to Employee hereunder, (ii) to protect the trade secrets and confidential information of Company or its affiliates disclosed or entrusted to Employee by Company or its affiliates or created or developed by Employee for Company or its affiliates, the business goodwill of Company or its affiliates developed through the efforts of Employee and/or the business opportunities disclosed or entrusted to Employee by Company or its affiliates and (iii) as an additional incentive for Company to enter into this Agreement.
(a) The Seller Subject to the exceptions set forth in section 7.2(b) below, Employee expressly covenants and ▇'▇▇▇▇▇▇ acknowledge agrees that in order to assure during the Buyer that the Buyer will retain the value of the AssetsProhibited Period, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing he will refrain from carrying on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingengaging in, directly or indirectly, as a partnerthe Business in the Restricted Area and (ii) he will not, officerand he will cause his affiliates not to, employeedirectly or indirectly, consultant own, manage, operate, join, become an employee of, control or otherwise, own or operate any business or Person, or otherwise become participate in or be interested in, or associate connected with or render assistance loan money to or sell or lease equipment to any Person business, individual, partnership, firm, corporation or other entity which engages in the Business in the Restricted Area; provided, however, Employee may sell or lease real property to any business, individual, partnership, firm, corporation or other entity which engages in the Business in the Restricted Area.
(other than b) Notwithstanding the Buyerrestrictions contained in Section 7.2(a), Employee or any of his affiliates may own an aggregate of not more than 2.5% of the outstanding stock of any class of any corporation engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall notBusiness, however, prohibit the making of passive investments of five percent (5%) or less of the if such stock of any company is listed on a national securities exchange or regularly traded in the over-the-counter market;
(b) Each market by a member of a national securities exchange, without violating the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree thatprovisions of Section 7.2(a), after giving effect to provided that neither Employee nor any of his affiliates has the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retainpower, directly or indirectly, to control or direct the management or affairs of any Person who such corporation and is (or during not involved in the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer management of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Productscorporation.
(c) Except as may Employee further expressly covenants and agrees that during the Prohibited Period, he will not, and he will cause his affiliates not to (i) engage or employ, or solicit or contact with a view to the engagement or employment of, any person who is an officer or employee of Company or its affiliates or (ii) canvass, solicit, approach or entice away or cause to be required in canvassed, solicited, approached or enticed away from Company or its affiliates any person who or which is a customer of Company or its affiliates during the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images period during which are the same as or similar to those used currently or in the past Employee is employed by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereofCompany.
Appears in 1 contract
Sources: Employment Agreement (Forum Oilfield Technologies Inc)
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure Until the Buyer that the Buyer will retain the value fifth anniversary of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing on the Closing Date and expiring on (the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"“Non-Competition Period”), they will not compete with the Buyer Seller shall not, and shall cause each of its Subsidiaries and Affiliates at the time any other Person in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingholds, directly or indirectly, controlling Equity Interests (such Persons, including their respective successors or assigns, are collectively referred to herein as a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer“Restricted Parties”), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retainto, directly or indirectly, form, own, manage, operate, join, control or participate (whether as a partner, agent, representative, or otherwise) in the ownership, management, operation or control of any Person in any territory in which the Company operates immediately prior to Closing or has taken reasonable measures as of the Closing Date to begin operating (the “Territory”), that, directly or indirectly competes with the business of the Company as it shall exist immediately prior to the Closing Date (including only changes or expansions in the business of the Company or the products sold or distributed by the Company that are expressly contemplated as of the Closing (including, for the avoidance of doubt, the Alternate Site Products)) (a “Competing Business”). In addition, during the Non-Competition Period, neither Seller nor any Restricted Party shall have, without Buyer’s prior written consent, any direct or indirect equity ownership in any such Person, other than as an owner of 2% or less of the outstanding stock of a publicly traded corporation. For the avoidance of doubt, Seller and the Restricted Parties shall not be restricted by the provisions of this Section 6.8 from acquiring (whether through a purchase of stock or assets, through a merger or consolidation, or otherwise) any Person that derives less than ten percent (10%) and less than $25,000,000 of its gross revenues (as measured from the conclusion of each of such Person’s last three completed fiscal years) from any Competing Businesses; provided, however, that following an acquisition permitted by this sentence, if such acquired Person derives more than twelve percent (12%) or more than $30,000,000 of its gross revenues from any Competing Businesses during any fiscal year that ends during the Non-Competition Period, Seller or such Restricted Party (as applicable) shall promptly provide written notice to Buyer of such fact and shall divest, as soon as reasonably practicable (but in any event within twelve months of providing such notice), a portion of the business of such Person that engages in Competing Businesses such that less than twelve percent (12%) and less than $30,000,000 of such Person’s gross revenues would be derived from Competing Businesses during the remainder of the Non-Competition Period. Seller shall keep Buyer informed, on a reasonably current basis and in reasonable detail, of the status of Seller’s efforts to divest such business (or portion thereof) in accordance with the preceding proviso and Buyer shall have the right to participate as a potential purchaser in the sale process for such business (or portion thereof) on terms at least as favorable to those being offered to other participants in the sale process.
(b) Until the third anniversary of the Closing Date, Seller shall not, and shall cause each of the Restricted Parties not to, directly or indirectly, for itself or on behalf of any Person, (i) solicit for employment or hire any Company employee; provided, however that any such employee may seek employment with the applicable Person in response to a general advertisement not directed at such employee and the applicable Person may hire any employee who responds to such general advertisement; (ii) approach any supplier or licensee of the Company with respect to products or services it provided to the Company at any time during the twelve-month period prior to the Closing with the intention of harming the business or operations of the Company by causing such Person to decrease or cease doing business with the Company; or (iii) approach any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or Company at any other Person with whom time during the Buyer or its Affiliates shall have dealt, twelve-month period prior to terminate or modify any written or oral agreement or course of dealing the Closing with the Buyer intention of harming the business or its Affiliates, or operations of the Company by causing such Person to otherwise interfere purchase the products of any business competitive with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected ProductsCompany.
(c) Except as Seller acknowledges that the provisions set forth in this Section 6.8 are an integral part of the success of the Company throughout the Territory. If, on or after the Closing Date, Seller or any Restricted Party utilizes its reputation and goodwill in competition with Buyer, Buyer will be deprived of the benefits it has bargained for pursuant to this Agreement. In the event that the agreements in this Section 6.8 shall be determined by any court of competent jurisdiction to be unenforceable by reason of extending for too great a time or over too great a geographical area or by reason of it being too extensive in any other respect, it shall be interpreted to extend only over the maximum period of time for which it may be required 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.
(d) If Seller or any Restricted Party breaches or threatens to commit a breach of any of the restrictive covenants set forth in this Section 6.8, then the Company and Buyer shall each have the following rights and remedies against Seller or such Restricted Party, each of which shall be independent of the others and severally enforceable, and each of the following rights and remedies is in addition to, and not in lieu of, any other rights and remedies otherwise available to any of them at Law or in equity: the right and remedy to have the restrictive covenants in this Section 6.8 specifically enforced against the Seller or such Restricted Party, including temporary restraining orders and injunctions by any court of competent jurisdiction, it being agreed by Seller that any breach or threatened breach by Seller or any Restricted Party of this Section 6.8 would cause irreparable injury to the Company and Buyer and that money damages would not provide an adequate remedy to the Company or Buyer.
(e) Each of Seller and Buyer intends that the covenants set forth in Sections 6.8(a) and 6.8(b) shall be deemed to be a series of separate covenants, one for each county or province of each and every state, territory or jurisdiction within the Territory, and one for each month of the time periods covered by such covenants.
(f) Seller hereby agrees that in the business event a court of the Buyer after the Closingcompetent jurisdiction declares there has been a breach by Seller or any Restricted Party of Section 6.8(a) or Section 6.8(b), the term of any such covenant so breached shall be automatically extended beyond its intended expiration for a period of time equal to the duration of such breach.
(g) Seller and ▇'▇▇▇▇▇▇ shall not at be responsible for any timebreach of this Section 6.8 by any of its Subsidiaries or any other Person in which Seller holds, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereofcontrolling Equity Interests.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure During the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any later of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later fifth anniversary of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur second anniversary of the expiration or termination of the Sales Representative and Subcontract/Reseller Agreement (A) a breach by Toymax or the Buyer of “Non-Compete Period”), except as provided in the Sales Representative and Subcontract/Reseller Agreement, neither Seller nor any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingshall, directly or indirectly, for its own account or on behalf of any other Person other than Buyer, organize, own, manage, operate, join, control, finance or participate in, or assist any other Person to participate in the ownership, management, operation, control or financing of, or be connected as a partnerprincipal, officeragent, representative, consultant, employee, consultant investor, owner, stockholder, partner, member, manager, joint venturer or otherwise, own or operate any business or Personotherwise with, or otherwise become permit its name to be used by or be interested in connection with, any business, enterprise or other entity engaged anywhere in North America in, or associate with or render assistance in competition with, the Business (except that Seller may provide its own internal maintenance and repair services incidental to its continuing operations and Seller may obtain such services from a third-party service provider for any Person (other than equipment of Seller not serviced by the BuyerBusiness prior to the Closing Date), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not; provided, however, prohibit that this Agreement shall not prevent the making beneficial ownership for investment purposes only of passive investments of five percent (5%) % or less of the stock any class of equity securities of any company listed on a national securities exchange or traded such Person which are registered under Section 12 of the Securities Exchange Act of 1934, as amended. Nothing in the over-the-counter market;this Agreement shall be construed to restrict Seller from competing with Buyer in any business other than as set forth in this Section 5.10(a).
(b) Each With respect to any person who is or was an employee of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase Business as of the Assets at date hereof or as of the Closing, it or he will not directly or indirectlyClosing Date, during the First Covenant Period and Second Covenant Non-Compete Period, as the case may be, for neither Seller nor any of its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retainAffiliates shall, directly or indirectly, for its own account or on behalf of any Person who is (other Person, solicit or employ any such person at any time during the twelve six (126) months prior thereto was) employed as an employee by following the Buyer end of such person’s employment with Buyer, or its Affiliates;
(B) influence induce or attempt to influence a supplier induce any such employee to leave his or customer of the her employment with Buyer or its Affiliates, or any other Person with whom the Buyer or of its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with after the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected ProductsClosing.
(c) Except as may be required in Subject to the business terms of the Buyer after Sales Representative and Subcontract/Reseller Agreement, during the ClosingNon-Compete Period, the neither Seller and ▇'▇▇▇▇▇▇ shall not at nor any timeof its Affiliates shall, directly or indirectly, use for its own account or purport on behalf of any other Person, solicit (for the products and services of the Business), divert, take away or attempt to authorize take away any Person to use of the customers of the Business or the business or patronage of any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently such customers or in the past by the Seller uniquely in connection with the Funnoodle Product Lineany way interfere with, whether disrupt or not such use would be in a business competitive with that of the attempt to disrupt any then existing relationships between Buyer or any of its Subsidiaries Affiliates and any of its customers, suppliers, or Affiliates. As used hereinother Persons with whom it deals (in each case in connection with the Business), the phrase "competitive business" means or contact or enter into any business competitive transaction in competition with the type operations of business Buyer in connection with the Business and any of its Affiliates with any such customers, suppliers or other Persons for any purpose.
(d) With respect to any person who is an employee of Seller engaged in the sale of services on behalf of Buyer pursuant to the Sales Representative and Subcontract/Reseller Agreement (but not an employee of the Business) as of the Closing Date and who is not hired by Buyer pursuant to Section 5.6(a), during the Non-Compete Period, neither Buyer nor any of its Affiliates shall, directly or indirectly, for its own account or on behalf of any other Person, solicit or employ any such person at any time during the six (6) months following the end of such person’s employment with Seller, the Buyer or induce or attempt to induce any such employee to leave his or her employment with Seller or any of their Subsidiaries or its Affiliates at after the date hereofClosing.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for For a period of five years commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIODRestricted Period"), they will Seller shall not, and shall not compete with permit any of its Affiliates to (i) engage in or assist others in engaging in the Buyer and its Subsidiaries and Affiliates at Restricted Business in the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS")Territory; and
(ii) for have an interest in any Person that engages in the Restricted Business in the Territory in any capacity, including as a period commencing on partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the Closing Date business relationships (whether formed prior to or after the date of this Agreement) between the Company and expiring on the first to occur of (A) a breach by Toymax customers or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any suppliers of the Transaction DocumentsCompany. Notwithstanding the foregoing, which breach is not cured within sixty (60i) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingmay own, directly or indirectly, as a partnersecurities of any Person traded on any national securities exchange if Seller and its Affiliates do not own 5% or more of any class of securities of such Person, officer(ii) Seller and its Affiliates may purchase and, employee, consultant or otherwisethereafter, own or operate any another business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer), engaged which operates in the business of marketing Restricted Business in the Territory, if the revenues related to or selling any of arising from the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) Restricted Business account for 20% or less of the stock aggregate gross revenues of the acquired business based on the most recent annual financial statements of the acquired business, and (iii) the restrictions contained in this Section 6.10 shall not restrict the activities of any company listed on a national securities exchange which may acquire Seller or traded in any of its Affiliates after the over-the-counter market;Closing Date.
(b) Each During the Restricted Period, Seller shall not, and shall not permit any of its Affiliates to, hire or solicit any employee of the Company or encourage any such employee to leave such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 6.10(b) shall prevent Seller and ▇'▇▇▇▇▇▇ and their respective or any of its Affiliates agree that, from hiring (i) any employee whose employment has been terminated by a Company Group Entity or Buyer or (ii) after giving effect to 90 days from the purchase date of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit termination of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectlyemployment, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee whose employment has been terminated by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Productsemployee.
(c) Except as Seller acknowledges that a breach or threatened breach of this Section 6.10 may give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Seller of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be required 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.
(d) Seller acknowledges that the business restrictions contained in this Section 6.10 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 Buyer after transactions contemplated by this Agreement. In the Closingevent that any covenant contained in this Section 6.10 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 Seller maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 6.10 and ▇'▇▇▇▇▇▇ each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not at invalidate or render unenforceable the remaining covenants or provisions hereof, and any time, directly such invalidity or indirectly, use unenforceability in any jurisdiction shall not invalidate or purport to authorize render unenforceable such covenant or provision in any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereofjurisdiction.
Appears in 1 contract
Non-Competition; Non-Solicitation. Consultant and the Company agree to the non-competition and non-solicitation provisions of this Article VI in consideration for the compensation identified in Article IV and confidential information provided by the Company to Consultant pursuant to Article V of this Agreement, to protect the trade secrets and confidential information of the Company or its affiliates disclosed or entrusted to Consultant by the Company or its affiliates or created or developed by Consultant for the Company or its affiliates, to protect the business goodwill of the Company or its affiliates developed through the efforts of Consultant and/or the business opportunities disclosed or entrusted to Consultant by the Company or its affiliates and as an additional incentive for the Company to enter into this Agreement.
(a) The Seller Subject to the exceptions set forth in Section 6.2(b) below, Consultant expressly covenants and ▇'▇▇▇▇▇▇ acknowledge agrees that in order to assure during the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
Prohibited Period (i) for a period commencing Consultant will refrain from carrying on the Closing Date or engaging in any Competing Business and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date Consultant will not, and expiring on the first to occur Consultant will cause Consultant’s affiliates not to, own, manage, operate, join, become an employee of, partner in, owner or member of (Aor an independent contractor to,) a breach by Toymax control or the Buyer of any of their material obligations to the Seller participate in, be connected with or ▇'▇▇▇▇▇▇ under any of the Transaction Documentsloan money to, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, sell or (B) the date which is the later of three (3) years from the Closing Date lease equipment or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participating, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate any business or Personproperty to, or otherwise become be affiliated with any business, individual, partnership, firm, corporation or be interested inother entity which engages in a Competing Business, as Consultant expressly agrees that each of the foregoing activities would represent carrying on or associate with or render assistance to any Person engaging in a Competitive Business, as prohibited by this Section 6.2(a).
(other than b) Notwithstanding the Buyerrestrictions contained in Section 6.2(a), engaged in the business of marketing Consultant or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making Consultant’s affiliates may own an aggregate of passive investments of five percent (5%) or less not more than 2% of the outstanding stock of any company class of any corporation engaged in a Competing Business, if such stock is listed on a national securities exchange or regularly traded in the over-the-the counter market;
(b) Each market by a member of a national securities exchange, without violating the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree thatprovisions of Section 6.2(a), after giving effect to provided that neither Consultant nor any of Consultant’s affiliates has the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retainpower, directly or indirectly, to control or direct the management or affairs of any Person who such corporation and is (or during not involved in the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer management of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Productscorporation.
(c) Except as may be required in Consultant further expressly covenants and agrees that during the business Prohibited Period, Consultant will not, and Consultant will cause Consultant’s affiliates not to (i) engage or employ, or solicit or contact with a view to the engagement or employment of, or recommend or refer to any person or entity (other than the Company or one of its affiliates) for engagement or employment any person who is an officer or employee of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer Company or any of its Subsidiaries affiliates or Affiliates. As used herein(ii) canvass, solicit, approach or entice away or cause to be canvassed, solicited, approached or enticed away from the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer Company or any of their Subsidiaries its affiliates any person or Affiliates at entity who or which is a customer of any of such entities during the date hereofConsulting Term or during the period during which Consultant is employed by the Company.
(d) Before accepting employment with any other person or entity while providing consulting services to the Company or during the Prohibited Period, Consultant will inform such person or entity of the restrictions and prohibitions contained in the Article VI. The Company reserves the right to provide a copy of this Agreement to any such person or entity.
Appears in 1 contract
Sources: Separation and Consulting Agreement (Ramaco Resources, Inc.)
Non-Competition; Non-Solicitation. From the Effective Date through the second anniversary of the Effective Date or, if earlier, the date EWCO ceases to make the Termination Payments as required by Section 2 or to provide the benefits as required by Section 3 for a reason other than EWCO's claim that Mr. Vanella has breached Section 5 of this Agreement (athe "Restricte▇ ▇▇▇▇"), ▇r. Vanella shall not (i) The Seller directly or indirectly engage, whether or ▇▇▇ ▇▇▇▇ ▇▇gagement shall be as an employee, partner, stockholder, equity holder, affiliate or other participant, in any Competitive Business, or represent in any way any Competitive Business; provided, however, that Mr. Vanella may be employed by Krauter Storage Systems as long as (1) ▇▇. ▇▇▇▇▇la is not in breach ▇▇, ▇▇ has not previously breached, the ▇▇▇▇▇ ▇▇▇ conditions of this Agreement, including, without limitation, the provisions regarding Confidential Information set forth in Section 5(b), and (2) such employment does not have a adverse effect on the businesses of any of the Companies, as determined by any of the Boards of Directors of the Companies, in their sole and exclusive business judgment; provided that the Board of Directors making such determination shall provide notice to Mr. Vanella of such determination and this condition shall be satisf▇'▇▇ ▇▇, ▇▇▇hin 10 days after Mr. Vanella's receipt of such notice, either such adverse condition ▇▇ ▇▇▇▇▇▇▇▇ acknowledge that in order to assure ▇n the Buyer that the Buyer will retain the value sole and exclusive business judgment of the Assetsapplicable Company's Board of Directors or any such employment of Mr. Vanella ceases, the Seller and (ii) interfere with, disrupt or attempt to disru▇'▇ ▇▇▇ ▇▇▇▇▇▇ agree that:
tionship, contractual or otherwise, between the Companies and any customer, supplier, or employee of the Company or any other third party, or (iiii) for a period commencing on the Closing Date and expiring on the first to occur of induce any current employee or former employee (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under whose employment with any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is Companies was terminated (by such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax employee or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured Companies) within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year of the date of such inducement) of the Companies to terminate their employment with the Companies or cause, in any way, any employee's separation from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected ProductsCompanies. For purposes of this Section 5.7Agreement, the term compete "Competitive Business" shall include acting or participating, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate mean any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer), engaged in the business design, manufacture or sale of marketing tubular metal products or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded rack storage systems in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, same markets as the case may be, for its Companies (whether prior to or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Products.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereofEffective Date).
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure Until the Buyer that the Buyer will retain the value fifth anniversary of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing on the Closing Date and expiring on (the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"“Non-Competition Period”), they will not compete with the Buyer Seller shall not, and shall cause each of its Subsidiaries and Affiliates at the time any other Person in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingholds, directly or indirectly, Controlling Equity Interests (such Persons, including their respective successors or assigns, are collectively referred to herein as a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer“Restricted Parties”), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retainto, directly or indirectly, form, own, manage, operate, join, control or participate (whether as a partner, agent, representative, or otherwise) in the ownership, management, operation or control of any Person who is (in any territory in which the Company operates immediately prior to Closing or during the twelve (12) months prior thereto was) employed has taken reasonable measures as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer Closing Date to begin operating (the “Territory”), that, directly or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing indirectly competes with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer business of the Buyer Company as it shall exist immediately prior to the Closing Date (including only changes or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Products.
(c) Except as may be required expansions in the business of the Buyer after Company or the Closingproducts sold or distributed by the Company that are expressly contemplated as of the Closing (including, for the avoidance of doubt, the Alternate Site Products)) (a “Competing Business”). In addition, during the Non-Competition Period, neither Seller nor any Restricted Party shall have, without Buyer’s prior written consent, any direct or indirect equity ownership in any such Person, other than as an owner of 2% or less of the outstanding stock of a publicly traded corporation. For the avoidance of doubt, Seller and ▇'▇▇▇▇▇▇ the Restricted Parties shall not at any timebe restricted by the provisions of this Section 6.8 from acquiring (whether through a purchase of stock or assets, directly through a merger or indirectlyconsolidation, use or purport to authorize otherwise) any Person to use that derives less than ten percent (10%) and less than $25,000,000 of its gross revenues (as measured from the conclusion of any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or of such Person’s last three completed fiscal years) from Competing Businesses in the past aggregate; provided, however, that following an acquisition permitted by this sentence, if such acquired Person derives more than twelve percent (12%) or more than $30,000,000 of its gross revenues from Competing Businesses in the aggregate during any fiscal year that ends during the Non-Competition Period, Seller uniquely or such Restricted Party (as applicable) shall promptly provide written notice to Buyer of such fact and shall divest, as soon as reasonably practicable (but in connection with any event within twelve months of providing such notice), a portion of the Funnoodle Product Line, whether or not business of such use Person that engages in Competing Businesses such that less than twelve percent (12%) and less than $30,000,000 of such Person’s gross revenues would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereof.derived from
Appears in 1 contract
Sources: Stock Purchase Agreement
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure For a period from the Buyer that Closing until the Buyer will retain the value earlier of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
fifth (i5th) for a period commencing on anniversary of the Closing Date and expiring on the first to occur dissolution and liquidation of (A) a breach by Toymax the Selling Entities, each Selling Entity shall not directly or indirectly, own, manage, operate, control or participate in the Buyer ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, engaged in the design, sourcing, distribution or sale through retail stores, outlet stores or catalogs of their material obligations to men’s, women’s or children’s outwear, apparel, accessories and sporting equipment or that otherwise competes with the Seller Business (a “Restricted Business”); provided, however, that the restrictions contained in this Section 7.14(a) shall not restrict the acquisition by a Selling Entity or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingAffiliates, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other of less than the Buyer), engaged in the business of marketing or selling any 2% of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the outstanding capital stock of any publicly traded company listed on engaged in a national securities exchange Restricted Business. The parties hereto specifically acknowledge and agree that the remedy at law for any breach of the foregoing will be inadequate and that the Buyer, in addition to any other relief available to it, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damage or traded in the over-the-counter market;posting any bond whatsoever.
(b) Each For a period from the Closing to the earlier of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase fifth (5th) anniversary of the Assets at Closing Date and the Closingdissolution and liquidation of the Selling Entities, it each Selling Entity shall not: (i) cause, solicit, induce or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit encourage any Current Employees of any other Person:
(A) influence Selling Entity or attempt to influence any Person (other than Acquired Subsidiary who are or become employees of the Seller providing consulting services Buyer or a Buyer Designee to Buyer at the time of Closing) to either terminate or modify leave such Person's employment or other professional relationship with the Buyer and/or its Affiliates(ii) cause, induce or encourage any material actual or prospective client, customer, supplier, or employ, consult licensor of the Business (including any existing or otherwise retain, directly former customer of a Selling Entity or indirectly, Acquired Subsidiary and any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence that becomes a supplier client or customer of the Buyer or its Affiliates, Business after the Closing) or any other Person who has a material business relationship with whom the Buyer or its Affiliates shall have dealtBusiness, to terminate or modify any written such actual or oral agreement or course of dealing prospective relationship with the Buyer (but taking into account, in each case, the fact that the Bankruptcy Case have commenced and that, following the Closing, the Selling Entities intend to dissolve and liquidate and, as a result thereof, may reject, terminate or its Affiliates, or to otherwise interfere with the Buyer's cease any remaining relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected ProductsPersons).
(c) Except as may be required The covenants and undertakings contained in the business this Section 7.14 relate to matters which are of a special, unique and extraordinary character and a violation of any of the Buyer after terms of this Section 7.14 will cause irreparable injury to the ClosingBuyer, the Seller amount of which will be impossible to estimate or determine and ▇'▇▇▇▇▇▇ shall which cannot at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliatesadequately compensated. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the SellerTherefore, the Buyer will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 7.14. The rights and remedies provided by this Section 7.14 are cumulative and in addition to any other rights and remedies which the Buyer may have hereunder or at law or in equity. Each of Buyer and Seller agree that if any portion of the Purchase Price or the Closing Payment is allocated to this Section 7.14 pursuant to Section 2.6 or otherwise, such allocated portion shall be de minimis.
(d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of their Subsidiaries this Section 7.14 is unreasonable, arbitrary or Affiliates at against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined to be reasonable, not arbitrary and not against public policy may be enforced against the date hereofapplicable party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Eddie Bauer Holdings, Inc.)
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for For a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from following the Closing Date Date, the Seller Parties shall not, and shall cause each of their respective Affiliates not to, engage in the business of selling any life, health, accident or two disability insurance within the United States (2“Competing Business”) years from through any Independent Producer or otherwise.
(b) Following the date Closing Date, the Management Services Agreement is terminated Seller Parties shall not, and shall cause each of their respective Affiliates to not (such period shall be referred to as i) initiate, promote or establish any program for the "FIRST COVENANT PERIOD")substitution, they will not compete surrender, exchange, termination or systematic replacement of all or any portion of the coverage provided by any Insurance Contract with the Buyer and an insurance policy or coverage written or sold by any Seller Party or any of its Subsidiaries and Affiliates at the time in questionAffiliates, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) induce or provide any incentive (financial or otherwise) to any Independent Producer to terminate its relationship with the Company, (iii) induce or provide any incentive (financial or otherwise) to any Independent Producer to target or solicit, or cause to be targeted or solicited (on a systematic basis or otherwise) any holder of an Insurance Contract to replace all or any portion of the coverage provided by such Insurance Contract with an insurance policy or coverage written or sold by any Seller Party or any of its Affiliates or (iv) use the list of holders of Insurance Contracts or information related to pricing or forms of such policies and contracts or similar proprietary information of the Company or any of its Subsidiaries for any purpose without Buyer’s prior written consent.
(c) Notwithstanding anything to the contrary set forth in Section 5.10(a), and without implication that the following activities otherwise would be subject to the provisions of this Section 5.10, nothing in Section 5.10(a) shall preclude, prohibit or restrict any Seller Party or any of its Affiliates from engaging, or require any Seller Party to cause any of its Affiliates not to engage, in any manner in any of the following: (i) making passive investments in the ordinary course of business, including in a general or separate account of an insurance company, in Persons engaged in a Competing Business; provided, that the Seller Party or such Affiliate of the Seller Party: (A) does not have the right to designate a majority of the members of the board of directors or other governing body of such entity or otherwise to direct the operation or management of any such entity, (B) is not a participant with any other Person in any group (as such term is used in Regulation 13D of the Exchange Act) with such right and (C) owns less than 10% of the outstanding voting securities (including convertible securities) of such entity; or (ii) acquiring any business, or acquiring, merging or combining with any Person (an “Acquired Business”) where the Acquired Business derived more than 10% of its net operating revenue on a consolidated basis for the most recent fiscal year from a Competing Business; provided, that within one year after such acquisition, merger or combination, either (A) such Seller Party or Affiliate of such Seller Party shall have disposed of the - 58 -
(d) Except as set forth in Section 5.10(d) of the Seller Disclosure Schedule, for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from following the Closing Date or one (1) year from Date, without the date the Management Services Agreement is terminated (such period prior written consent of Buyer, no Seller Party shall, and each Seller Party shall be referred cause its Affiliates to as the "SECOND COVENANT PERIOD")not, they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participating, whether directly or indirectly, as a partnersolicit for employment, officer, employee, consultant employ or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than contract for the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock services of any company listed on Employee; provided, that nothing in this Section 5.10(d) shall prohibit a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer Party or its Affiliates shall have dealtfrom engaging in general solicitations not directed at such Persons or from soliciting, to terminate employing or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, contracting for the purpose services of offering any such Person whose employment with or selling any of the Protected Products.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past engagement by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries Affiliates (including the Company and its Subsidiaries) has been terminated by Buyer or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business its applicable Affiliate or who has otherwise ceased to be employed or engaged in by the Seller, the Buyer or any of their Subsidiaries its Affiliates (including the Company and its Subsidiaries) for a period of at least twelve (12) months; provided, further, that nothing in this Section 5.10(d) prohibits Seller or Affiliates at any Affiliate of Seller from employing a Key Executive under the date hereof.terms of Section 5.12(h). 5.11
Appears in 1 contract
Sources: Purchase Agreement (Horace Mann Educators Corp /De/)
Non-Competition; Non-Solicitation. (a) The Seller Each of Holdings, Knight and ▇'▇▇▇▇▇▇ acknowledge the Sellers agrees that in order to assure the Buyer that the Buyer it will retain the value not (and will cause each of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is its respective Affiliates not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"to), they will not compete with without the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur prior written consent of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingParent, directly or indirectly, as a partner, officer, employee, consultant individually or otherwise, own or operate on behalf of any business or other Person, or otherwise become or be interested in, or associate with or render assistance (i) prior to any Person (other than the Buyer), engaged in the business of marketing or selling any second anniversary of the Protected Products. The foregoing provisions shall notClosing Date, solicit, aid, induce or encourage any individual, who is an employee of either of the Sellers with respect to the Business as of the date hereof or immediately prior to the Closing Date (the “Designated Employees”) to leave his or her employment relationship with the Business either as an employee of either Seller prior to the Closing or as an employee of Parent or Purchasers as of or after the Closing; provided, however, that it is understood that this Section 5.9(a)(i) shall not prohibit: (A) solicitation of any Designated Employee who contacts Holdings, Knight, Sellers or any of their respective Affiliates on his or her own initiative without any solicitation by or encouragement from Holdings, Knight, Sellers or any of their respective Affiliates; (B) any solicitation by a professional search firm where none of Holdings, Knight, Sellers or any of their respective Affiliates has, directly or indirectly, directed such firm to solicit that person; (C) generalized solicitations by advertising and the like which are not specifically directed to the Designated Employees; or (D) solicitations of any Designated Employee whose employment was terminated, without cause, by Parent or Purchasers on or after the Closing or (ii) prior to the third anniversary of the Closing Date, hire or otherwise engage, or assist any Person in hiring or otherwise engaging, any such Designated Employee who has been employed with respect to the Business by either Seller, Parent or Purchasers, as the case may be, within the immediately preceding twelve (12) months; provided, however, that it is understood that this Section 5.9(a)(ii) shall not prohibit the making hiring or otherwise engaging (or assisting any Person in hiring or otherwise engaging) of passive investments any Designated Employee whose employment was terminated, without cause, by Parent or Purchasers on or after the Closing.
(b) Each of five percent Holdings, Knight, and Sellers agrees that it will not (5%) and will cause each of their respective Affiliates not to), without the prior written consent of Parent, directly or less indirectly, prior to the third anniversary of the stock Closing Date, solicit any Person who is a client or customer of a Restricted Business as of the Closing Date for the purposes of providing any products or services of a type substantially similar to any of those provided by a Restricted Business.
(c) Each of Holdings, Knight, and Sellers agrees that it will not (and will cause each of their respective Affiliates not to), without the prior written consent of Parent, directly or indirectly, prior to the third anniversary of the Closing Date, engage in or carry on in any capacity, directly or indirectly (including as stockholder, investor, member, partner, principal, proprietor, independent contractor, agent or, outside of the relevant Person’s ordinary course of business, creditor; provided that in no event will acting as creditor to a Restricted Business be considered in the relevant Person’s ordinary course of business if the relevant Person receives, in connection with its acting as creditor, equity securities or securities that by their terms are convertible into or exchangeable for equity securities of such Restricted Business whether immediately or upon the passage of time or the occurrence of specified events), any business, trade or venture substantially similar to a Restricted Business in the United States or Canada; provided, however, that (i) the ownership of less than 5% of any company listed class of the issued and outstanding securities of a Person engaged in a Restricted Business shall not constitute a violation of Sections 5.9(b) and (c) if (A) such class of securities of such Person is traded on a national securities exchange or traded in the over-the-counter market;
market or (bB) Each such class of securities of such Person is not so traded on a national securities exchange or in the over-the-counter market so long as the Restricted Businesses in which such Person is engaged do not generate over fifteen percent (15%) of such Person’s annual gross revenues and (ii) entering into or engaging in a Restricted Business as a result of any acquisition, asset purchase, merger, consolidation or similar business combination shall not constitute a violation of Sections 5.9(b) and (c) if (x) such transaction results in a change in control of Knight or (y) the Person with which such transaction occurs is a Person whose Restricted Businesses prior to the transaction do not generate over fifteen percent (15%) of such Person’s annual gross revenues and, after such transaction and through the third anniversary of the Seller Closing Date, the Restricted Businesses of such Person are conducted on a scale and ▇'▇▇▇▇▇▇ on a basis substantially similar to the scale and basis on which they were conducted prior to the transaction. Notwithstanding the provisions of Sections 5.9(b) and (c) and for the sake of clarity, each of Holdings, Knight and Sellers and their respective Affiliates agree that, after giving effect shall at all times be permitted to engage in any business which they presently conduct other than the Business sold pursuant to this Agreement and then only to the purchase extent set forth above. In the event that any of Holdings, Knight and Sellers or their respective Affiliates shall sell to a Person that is not an Affiliate of Holdings, Knight or Sellers any portion of its business, whether by means of acquisition, asset purchase, merger, consolidation, similar business combination or otherwise, the restrictions and agreements contained in this Section 5.9 shall not prohibit any such sale and shall not apply to any such Person.
(d) For purposes of this Agreement, “Restricted Businesses” means the material components of the Assets at Business relating to the Closingactivities of (i) acting as a Specialist, it DPM, LMM, PMM, CMM, RMM or he will not directly or indirectly, during the First Covenant Period and Second Covenant PeriodMarket Maker (each a “Registered Function”), as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee terms are recognized by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Products.
(c) Except as may be required in the business of the Buyer after the ClosingAmerican Stock Exchange, the Seller Philadelphia Stock Exchange, the Boston Stock Exchange, the Chicago Board Options Exchange, the International Securities Exchange, the Pacific Exchange, the Chicago Board of Trade, the Chicago Mercantile Exchange or the New York Mercantile Exchange, in listed equity options, listed index options, and ▇'▇▇▇▇▇▇ listed options on futures contracts, either on an exchange floor or in an electronic exchange venue and (ii) soliciting customers for the best-execution routing or brokering of execution orders for trades in listed equity options and listed index options; provided, however, that the definition of Restricted Business shall specifically exclude the routing or brokering of execution orders for trades in any products on an unsolicited electronic customer initiated basis through direct market access technology, services or products so long as, with respect to the routing of listed equity options and listed index options execution orders, such routing is made only to an intermediary that is not at an Affiliate of Holdings, Knight or Sellers. For the sake of clarity, the definition of “Restricted Business” shall also specifically exclude (a) any timeactivities relating to equity, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress index or other identifying words or images securities which are not listed options, listed index options or listed options on futures, including the same as trading, routing or similar to those used currently brokering of any such other securities, or (b) the trading of any options or other derivative securities in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be any capacity other than in a business competitive with that Registered Function. Further for the sake of the Buyer or any of its Subsidiaries or Affiliates. As used hereinclarity, the phrase "competitive business" means any business competitive with terms “equity securities” and “equity options” shall include exchange traded funds and the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereofoptions on exchange traded funds respectively.
Appears in 1 contract
Sources: Asset Purchase Agreement (Knight Trading Group Inc)
Non-Competition; Non-Solicitation. Following the Closing in respect of the Kuwait Assets, Seller shall not and shall cause each of its Affiliates not to use the Joint Venture Trademarks in the Territory. During the period commencing on a Closing Date and ending on the three year anniversary of that Closing Date in respect of the Territory which is subject to that Closing, Seller shall not, and shall cause each of its Affiliates not to:
(a) The engage in the oil and gas land contract drilling rig business in the Territory for which a Closing has occurred; provided, however, that, nothing in this Section 5.14 shall prohibit Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value or its Affiliates from disposing of the Assetsremainder of its rigs currently outside the Territory to any Person (whether or not a competitor of Purchaser) and regardless of when or how such Person deploys or locates such rigs throughout the world; provided, further, that, for the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing on purposes of this Section 5.14(a), ownership of securities having no more than 1% of the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer outstanding voting power of any Person which are listed on any national securities exchange will not be deemed to be in violation of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60this Section 5.14(a) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as long as the "FIRST COVENANT PERIOD"), they will not compete Person owning such securities has no other connection or relationship with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS")such Person; and
(iib) (i) solicit any Transferring Employee or any other employee of Purchaser, a Designated Affiliate or the Joint Venture in the Territory for which a Closing has occurred away from or out of the employ of Purchaser, a Designated Affiliate or the Joint Venture unless such individual will have ceased to be employed by Purchaser, a Designated Affiliate or the Joint Venture for a period commencing on of at least six months prior thereto or (ii) solicit the Closing Date and expiring on the first to occur customer of Purchaser or a Designated Affiliate (A) a breach by Toymax or the Buyer of Joint Venture after such Closing) who is at Closing or who has been at any of their material obligations to time during the Seller twelve months immediately preceding Closing a client or ▇'▇▇▇▇▇▇ under any customer of the Transaction DocumentsBusiness with a view to providing goods or service, which breach is not cured within sixty to such customer in competition with the Business (60or any part of it) days after notice thereof from as it was carried on at the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the applicable Closing Date or one in the twelve months immediately preceding the applicable Closing Date or (1iii) year cause, induce or attempt to cause or induce any customer, strategic partner, supplier, distributor, landlord or others doing business with Purchaser, a Designated Affiliate or the Joint Venture in the Territory and relating to the Purchased Assets (including any Independent Contractors) to cease or reduce the extent of its business relationship with Purchaser, a Designated Affiliate or the Joint Venture or to deal with any competitor of Purchaser, a Designated Affiliate or the Joint Venture; provided, however, that this Section 5.14(b) will not be deemed to prohibit Seller and its Affiliates from engaging in general media advertising or solicitation that may be targeted to a particular geographic or technical area but that is not targeted towards any Transferring Employees or employees of Purchaser, a Designated Affiliate or the date Joint Venture in the Management Services Agreement is terminated Territory for which a Closing has occurred, or otherwise hiring any Person that responds to such solicitation. 428928/HOUDMS
(such period c) The covenants in Section 5.14 are intended to be for the benefit of, and shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and enforceable by Purchaser or its Subsidiaries and Designated Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS"Joint Venture and apply to actions carried out by Seller (or any of its Affiliates) it being understood in any capacity and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participating, whether directly or indirectly, as a partner, officer, employee, consultant on its own behalf or otherwise, own or operate any business or Personon behalf of, or otherwise become or be interested injointly with, or associate with or render assistance to any Person (other than the Buyer), engaged in the business of marketing or selling any of the Protected Productsperson. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of the covenants in Section 5.14 is a separate undertaking by Seller and ▇'▇▇▇▇▇▇ shall be enforceable by Purchaser or its Designated Affiliates separately and independently of their respective Affiliates agree that, after giving effect right to the purchase enforce any one or more of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties covenants contained in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Productsthat clause.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereof.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Weatherford International PLC)
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for For a period commencing on the Closing Date and expiring on the first to occur of four (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (54) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"“Non-Competition Period”), they Sellers’ Guarantor and each Selling Party agrees that, without the prior written consent of Buyer, it will not, and will cause its Affiliates not compete to, directly or indirectly (whether by himself, herself or itself, through an Affiliate in partnership or conjunction with or as a manager, member, owner, consultant or agent of, any other Person or otherwise), engage in any business in Full and Open Competition with the Buyer business of the Acquired Companies as conducted on the Closing Date, including by providing services in the areas of research and its Subsidiaries development, systems engineering, missions operations, technology development, network solutions, scientific and Affiliates at IT service solutions and management consulting primarily for the time in questionDOD, in connection with intelligence community, NASA and other US Government customers which are substantially the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (same or similar to those conducted by the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing Acquired Companies on the Closing Date and expiring on including the first business prospects, Government Contracts and Government Bids identified in the Acquired Companies’ “waterfall charts” attached hereto as Schedule 7.07 (regardless of whether such prospect ultimately is conducted as a Full and Open Competition or as set-aside for small or disadvantaged business), in each case (a “Competing Business”); provided, however, that nothing in this Section 7.07(a) shall be deemed to occur limit in any way or preclude such Selling Party or Sellers’ Guarantor, as applicable (i) from owning securities of any entity engaged in any Competing Business which has outstanding publicly traded securities, so long as Selling Party and Sellers’ Guarantor’s aggregate direct holdings in any such entity shall not in the aggregate constitute more than five percent (5.0%) of the voting power of such entity or (ii) from investing in a private equity or hedge fund which invests in or maintains a Competing Business so long as (A) a breach by Toymax the Selling Parties’ and Sellers’ Guarantor’s holdings in such fund or the Buyer portfolio company of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach such fund is not cured within sixty (60) days after notice thereof from the Seller passive and ▇'▇▇▇▇▇▇, or (B) neither the date which Selling Parties nor Sellers’ Guarantor provides advice, manages, works for, consults with or renders other services to such fund or portfolio company nor is otherwise involved in any way in the later management or decision-making of three (3) years from such fund or portfolio company. Notwithstanding the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD")foregoing, they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys Sellers’ Guarantor shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participating, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five restricted from owning twenty percent (520%) or less of the stock membership interests of Aerodyne Industries, LLC (“Aerodyne”) or serving on the board of directors, or any advisory board of Aerodyne; provided, however, that none of the Selling Parties or Sellers’ Guarantor will have involvement in the management of Aerodyne that would otherwise be in violation of this Section 7.07(a); provided, further, if, during the Non-Competition Period Aerodyne engages in a Competing Business as a prime contractor, then Sellers’ Guarantor shall unless otherwise specifically agreed in writing by Buyer, recuse himself from participating in any way with the efforts of Aerodyne in its pursuit of such Competing Business as a prime contractor. If during the Non-Competition Period Aerodyne shall no longer qualify as a small business under any applicable North American Industry Classification System (NAICS) categories that it currently operates under for which it currently qualifies as a small business, and Aerodyne engages in a Competing Business, Sellers’ Guarantor shall divest his ownership interest in Aerodyne and resign from any board of directors or advisory board or other management position of Aerodyne on which he is serving as soon as practical following the date that Aerodyne no longer qualifies as a small business; provided, that, if Aerodyne files a timely appeal of a government size determination, then Sellers’ Guarantor’s obligations referenced above shall commence upon the denial, dismissal, or withdrawal of any company listed such appeal. In any event, Sellers’ Guarantor shall consummate such divestiture and resignation within three (3) months following the date of a government size determination unless such determination is reversed by the applicable appellate authority.
(a) Buyer and Sellers’ Guarantor will enter into a mutually agreeable strategic alliance agreement with X Energy LLC, Intuitive Machines LLC, and Axiom Space LLC (“Restricted Affiliate Companies”), to preserve the intent of the restrictions against Competing Business described in Section 7.07(a) but not otherwise restrict or impede the business or growth prospects of the Restricted Affiliate Companies products and services. For the avoidance of doubt, it shall not be a condition to Closing that such agreement be entered into on a national securities exchange or traded in the over-the-counter market;prior to Closing.
(b) Each of During the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Non-Competition Period, as Sellers’ Guarantor and each Selling Party shall not, and shall cause its Affiliates not to, without the case may be, for its or his own benefit or for the benefit prior written consent of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retainBuyer, directly or indirectlyindirectly (whether by himself, any Person who is (herself or during the twelve (12) months prior thereto was) employed itself, through an Affiliate in partnership or conjunction with or as an employee by the Buyer a manager, member, owner, consultant or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliatesagent of, or any other Person with whom the or otherwise), solicit or hire or employ or seek to entice away from Buyer or its Affiliates shall for employment any Continuing Employee; provided that (i) none of the Selling Parties, Sellers’ Guarantor or their respective Affiliates will be deemed to have dealtsolicited (and any such Persons may hire) any such Continuing Employee who responds to any general media advertisement or job posting placed by or on behalf of such Selling Party or Sellers’ Guarantor or any of its Affiliates, as applicable, prior to terminate any direct or modify indirect solicitation by such Selling Party or Sellers’ Guarantor or any written of its Affiliates; (ii) the Selling Parties, Sellers’ Guarantor or oral agreement any of their respective Affiliates may solicit and hire any such Continuing Employee who has been involuntarily terminated or course laid off in either case for other than performance-related reasons (as determined in the reasonable discretion of dealing with the Buyer) by Buyer or its AffiliatesSubsidiaries; (iii) the Selling Parties, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, Sellers’ Guarantor or any other Person of their respective Affiliates may solicit and hire any such Continuing Employee whose employment terminated with whom Buyer and its Subsidiaries for any reason at least two (2) years prior to the Buyer date of such solicitation or its Affiliates shall have dealthiring; and (iv) the Selling Parties, for the purpose of offering Sellers’ Guarantor or selling any of their respective Affiliates may, as agreed by Buyer, solicit and hire certain Continuing Employees, who shall be identified and mutually agreed upon by Buyer and Sellers’ Guarantor prior to the Protected ProductsClosing.
(c) Except as In the event that any of the covenants contained in this Section 7.07 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its extending for too long a period of time or over too large a geographical area or by reason of being too extensive in any other respect, the covenants contained in this Section 7.07 shall be interpreted to extend only over the longest period of time for which they may be required enforceable, and/or over the largest geographical area as to which they may be enforceable and/or to the maximum extent in the business of the Buyer after the Closingall other aspects as to which they may be enforceable, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same all as or similar to those used currently or determined by such court in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereofaction.
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Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure During the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days ending 24 months after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date (the “Restricted Period”), Seller will not, and will cause its Subsidiaries not to, directly or two indirectly, participate or engage in, or hold any ownership interest in any Person who engages in, the provision of any service that is the same or substantially similar to or competitive with the Business or any Business Products in any geographic area where the Business offers or sells or offered or sold products or services (2“Competing Activity”). Promptly (but in any event within five Business Days) years from following the date Closing, Seller shall send a notice to employees of Seller and its Subsidiaries engaged in a sales function directing such employees not to, during the Management Services Restricted Period, knowingly induce or knowingly attempt to induce any client, supplier or other business relation of the Business, in each case, to cease doing business with the Buyer or its Subsidiaries, or in any way take actions with the intention of materially interfering with the relationship between any such client, supplier or other business relation, in each case, with respect to the Business.
(b) Notwithstanding anything to the contrary in the foregoing clause (a), Seller and its Subsidiaries may in all events:
(i) engage in any business conducted by Seller or its Subsidiaries on the Agreement is terminated Date other than the Business and continue to sell its products and services as of the Agreement Date other than Business Products, and any new releases, updates and successors to such products and services, in each case, that are not competitive with the Business or the Business Products;
(ii) continue to perform any Competing Activity for the benefit of Buyer or any of its Affiliates as expressly required by this Agreement or any other Transaction Document;
(iii) acquire any Person, or one or more divisions or lines of business of a Person, that engages in a Competing Activity by merger or a purchase of shares or assets of a Person so long as, immediately prior to the time of such acquisition, the Competing Activity does not account for more than 20% of the aggregate annual gross revenues of such Person, or divisions or lines of business of such Person, to be so acquired for its most recent fiscal year preceding the acquisition; provided, however, that in the event of such acquisition where the aggregate annual gross revenue related to the Competing Activity exceeds 20% of the aggregate annual gross revenue of the Person or divisions or lines of business of such Person, Seller shall be permitted to acquire such Person or business so long as it divests the portion of the Person or business that engages in the Competing Activity within 12 months of the acquisition thereof; provided that such 12-month period shall be referred extended to as the "FIRST COVENANT PERIOD")date on which all approvals from a Governmental Authority required to complete the divestiture are received (to no later than the third anniversary following the acquisition of such Person or divisions or lines of business of such Person) if such approvals are not received by the end of such 12-month period;
(iv) own and operate any Person, they will division or line of business acquired in compliance with clause (iii) above; provided that, any such division or line of business cannot compete with and does not account for more than 10% of the Buyer aggregate annual gross revenues of Seller and its Subsidiaries and Affiliates at during the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS")Restricted Period; and
(iiv) for directly or indirectly hold interests in or securities of any Person engaged in a Competing Activity to the extent that such investment does not, directly or indirectly, confer on any of Seller or its Affiliates 10% or more of the voting power of or economic entitlement to such Person.
(c) During the period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days ending 24 months after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD")Date, they Seller will not compete with the Buyer not, and will cause its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingto, directly or indirectly, hire or solicit to hire in any capacity (whether as a partner, officer, an employee, consultant consultant, independent contractor or otherwise, own ) (i) any Continuing Employee or operate any business (ii) members of the senior leadership team of Buyer. This restriction shall not apply to Persons that have been terminated by Buyer or Person, or otherwise become or be interested in, or associate with or render assistance its Subsidiaries at least six months prior to any solicitation or the commencement of employment discussions between Seller or its Subsidiaries or its or their representatives and such Person and nothing in this clause (other than the Buyer)c) shall restrict Seller or its Subsidiaries from engaging in general or public searches, engaged solicitations or advertising by or on behalf of Seller or such Subsidiary (including through search firms) that are not specifically directed towards any such Person described in the business first sentence of marketing or selling any of this clause (c).
(d) During the Protected Products. The foregoing provisions shall period commencing on the Closing Date and ending 24 months after the Closing Date, Buyer will not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will cause its Subsidiaries not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retainto, directly or indirectly, solicit to hire in any Person capacity (whether as an employee, consultant, independent contractor or otherwise) (i) any employee of Seller or its Subsidiaries (other than any Business Employee) who has a title of Vice President or above or (ii) any other employee of Seller or its Subsidiaries who is (engaged in whole or during in part in providing services to Buyer pursuant to the twelve (12) TSA. This restriction shall not apply to Persons who have been terminated by Seller or its Subsidiaries at least six months prior thereto was) employed as an employee by the to commencement of employment discussions between Buyer or its Affiliates;
Subsidiaries or its or their representatives and such Person and nothing in this clause (Bd) influence or attempt to influence a supplier or customer of the shall restrict Buyer or its AffiliatesSubsidiaries from engaging in general or public searches, solicitations or advertising by or on behalf of Buyer or such Subsidiary (including through search firms) that is not specifically directed towards any such Person described in the first sentence of this clause (d).
(e) Each Party acknowledges and agrees that the covenants and agreements set forth in this Section 6.10 were a material inducement to the other Party to enter into this Agreement and to perform its obligations hereunder. Seller hereby acknowledges that the restrictive covenants set forth in Section 6.10(a) are reasonable in terms of duration, scope and area restrictions and are limited to the scope that is necessary to protect the goodwill of the Business and to prevent the impairment of the value of the substantial investment therein being made by Buyer hereunder. The Parties agree that, if any court of competent jurisdiction in a final, non-appealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other Person with whom relevant feature of this Section 6.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the Buyer applicable Party. It is agreed that any breach or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer threatened breach of the Buyer or its Affiliates, or any other Person with whom restrictive covenants set forth in this Section 6.10 would cause irreparable injury to the Buyer or its Affiliates shall have dealt, for non-breaching Party and that money damages would not provide an adequate remedy to the purpose of offering or selling any of the Protected Productsnon-breaching Party.
(cf) Except as may be required Subject in all cases to applicable Law, Buyer and Seller expressly acknowledge and agree that in the business event of any violation of the Buyer after the Closingprovisions of this Section 6.10 by Buyer, Seller or their respective Affiliates or Representatives, the Seller and ▇'▇▇▇▇▇▇ restrictions contained in this Section 6.10 shall not at any timebe extended by a period of time equal to the period of such violation, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are it being the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that intention of the Buyer or parties hereto that the running of the restriction period shall be tolled during any period of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereofsuch violation.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in In order to assure induce the Buyer that the Buyer will retain the value of the AssetsPurchaser to enter into this Agreement, the Seller agrees and ▇'▇▇▇▇▇▇ agree covenants that, during the period beginning at the Closing and ending on the third anniversary of the Closing Date, the Seller shall not (and shall cause its Affiliates not to), directly or indirectly:
(i) operate a business that provides investment management or investment advisory services (whether as a primary manager or adviser or a sub-manager or sub-adviser) to separately managed accounts, mutual funds, or other pooled investment vehicles (a “Competing Business”);
(ii) solicit any Person who was a Client of the Scout Group as of the Closing Date or at any time during the twelve (12) month period prior to the Closing Date (each, a “Restricted Person”) for a period commencing the provision of Investment Advisory Services as provided by Scout to such Restricted Person on the Closing Date and expiring on or at any time during the first twelve (12) month period prior to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred services as so provided to as such Restricted Person, the "FIRST COVENANT PERIOD"“Restricted Services”), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and;
(iiiii) for provide Restricted Services to a period commencing on the Closing Date and expiring on the first to occur of Restricted Person;
(Aiv) a breach by Toymax solicit or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participating, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to induce any Person (other than the Buyer), engaged in Seller and its Affiliates) with the business of marketing effect or selling for the purpose of: (A) causing any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent funds or assets with respect to which Scout provides Investment Advisory Services to be withdrawn from Scout’s provision thereof (5%) other than any such funds or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each assets of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase or any of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
Affiliates); (AB) influence or attempt to influence causing any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or and its Affiliates, ) not to engage Scout or employ, consult any of its Affiliates to provide Investment Advisory Services for any funds or otherwise retain, directly assets or indirectly, additional funds or assets; or (C) causing any Person who is (or during other than the twelve (12) months prior thereto was) employed as an employee by the Buyer or Seller and its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify diminish its relationship involving Investment Advisory Services with Scout or any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(Cv) influence solicit or hire, or attempt to influence solicit or hire, any Continuing Employee for employment or in any other capacity (including, without limitation, as an independent contractor or consultant); provided, however, that nothing in this clause (v) shall prohibit Seller or any of its Affiliates from: (A) advertising, publishing, or posting open positions in the course of normal hiring practices or otherwise engaging in any other ordinary course hiring practices, such as employee searches by third party search firms, in each case, that are not specifically sent to, or do not specifically target, any Continuing Employees, so long as, subject to clause (B) below, no such Continuing Employee is hired by the Seller or any such Affiliates; or (B) soliciting for employment or hiring any Continuing Employee who: (x) was terminated by the Purchaser or any of its Affiliates; or (y) has not been employed by the Purchaser or any of its Affiliates for a supplier period of at least six months.
(b) Notwithstanding Section 5.11(a) hereof, in order to induce the Seller to enter into this Agreement, the Purchaser acknowledges, agrees and covenants that: (x) if: (1) any Person obtains direct or customer indirect control of the Buyer Seller in a bona fide transaction pursuant to which such Person or its Affiliatesany Affiliate thereof makes a material investment in, or acquires, the Seller (whether by equity purchase, asset purchase, merger, consolidation, or otherwise); and (2) such transaction is not entered into for purposes of evading the provisions of this Section 5.11, then, such Person and each of its Affiliates (other than the Seller and the Persons that were Affiliates of the Seller immediately prior to giving effect to such transaction) shall not be deemed to be an Affiliate of the Seller for purposes of this Section 5.11; and/or (y) neither the Seller nor any other Person with whom the Buyer or of its Affiliates shall have dealtbe precluded from:
(i) except as expressly prohibited by Section 5.11(a), and otherwise subject to the limitations in this Section 5.11(b), conducting its banking, financing, underwriting, private equity, capital markets, investor services and other activities not involving a Competing Business in the ordinary course of business, it being acknowledged and agreed that, notwithstanding the foregoing or any contrary provision contained in this Agreement (but subject to the proviso below), nothing contained in this Section 5.11 shall restrict, limit, or otherwise adversely affect: (A) Prairie Capital Management from conducting its business, whether directly or through its controlled Affiliates, in a manner consistent with the way in which it conducts its business as of the date of this Agreement; (B) the Seller’s Private Wealth Management business unit from conducting its business in a manner consistent with the way in which it conducts its business as of the date of this Agreement (including complying with the exercise of applicable fiduciary duties which, for the purpose avoidance of offering doubt, may result in one or selling any more actions referenced in Section 5.11(a)(i) or Section 5.11(a)(iv) above); (C) the Seller’s institutional banking or asset servicing businesses in a manner consistent with the way in which it conducts such business as of the Protected Productsdate of this Agreement; and/or (D) the Seller’s ability to provide Investment Advisory Services to those existing clients of the Seller set forth on Schedule 5.11(b)(i)(D) of the Disclosure Schedule; provided, however, that none of the services or other activities referenced in the foregoing clauses (A), (B) and (C) shall, to the extent such services or activities would constitute any part of a Competing Business: (x) be offered or provided to Restricted Persons (except to the extent expressly set forth in clause (B) and only to the extent provided in a manner consistent with the way in which such services or activities are provided as of the date of this Agreement to such Restricted Person); (y) marketed, distributed, or made available through: (I) wire houses or mutual fund platforms; or (II) other third parties with assets under management or assets under administration of $15 billion or greater; or (z) include the creation or manufacture of investment products (including pooled investment vehicles and separate account structures) in respect of investment strategies that are not consistent with the investment strategies offered to institutional clients by Prairie Capital Management, the Seller’s Private Wealth Management business unit and/or the Seller’s institutional banking or asset servicing businesses as of the date of this Agreement; and/or
(ii) acquiring any business or Person (whether by equity purchase, asset purchase, merger, consolidation, or otherwise) that operates a Competing Business, so long as, for the most recent fiscal year ended immediately prior to the date of such acquisition, the revenues or net profits of such business or Person that were derived from the operation of such Competing Business were no more than 25% of the aggregate revenues of such business or Person (and any other business or Person acquired in connection with such transaction) for such fiscal year, and thereafter (in each case) operating the Competing Business that is so acquired; provided, however, that if any such acquisition would not satisfy the requirements in this clause (ii), then, the Seller or the applicable Affiliate thereof may nonetheless consummate such acquisition so long as it enters into a definitive agreement to effect the disposition of the Competing Business so acquired or a portion thereof such that such acquisition would satisfy the requirements set forth in this clause (ii) within 12 months following the completion of such acquisition, and thereafter the Seller uses commercially reasonable efforts to consummate the disposition contemplated by such definitive agreement; and/or
(iii) acquiring, owning, or holding securities of any entity whose securities are listed and traded on a nationally recognized securities exchange; provided that, if the primary business of such entity is to operate a Competing Business, the Seller does not acquire, own, or hold more than 15% of the outstanding Equity Interests of such entity (or warrants or other rights to acquire such Equity Interests).
(c) Except as may be required in The Seller acknowledges and agrees that: (i) the business covenants of the Buyer after parties hereto set forth in this Section 5.11 are an essential element of this Agreement and that, but for the Closingagreement of the Seller to comply with these covenants, the Purchaser would not have entered into this Agreement; and (ii) the character, duration and geographical scope of the covenants in this Section 5.11 are reasonable in light of the circumstances as they exist on the date hereof. Notwithstanding the foregoing, if nonetheless any provision (or any part thereof) contained in this Section 5.11 shall for any reason be held invalid, illegal, or unenforceable in any respect, the Seller and ▇'▇▇▇▇▇▇ agrees that, to the extent permitted by applicable Law: (A) such determination shall not at affect the validity or enforceability of: (x) the offending term or provision in any timeother situation or in any other jurisdiction; or (y) the remaining terms and provisions of this Section 5.11 in any situation in any jurisdiction; (B) the offending term or provision shall be modified rather than voided and the Governmental Authority making such determination shall have the power to reduce the scope, directly duration, or indirectlygeographical area of any invalid or unenforceable term or provision, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying delete specific words or images which are 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 same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that intention of the Buyer invalid or any of its Subsidiaries or Affiliates. As used hereinunenforceable provision, in order to render the phrase "competitive business" means any business competitive with restrictive covenants set forth in this Section 5.11 enforceable to the type of business engaged fullest extent permitted by applicable Law; and (C) the restrictive covenants set forth in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereofthis Section 5.11 shall be enforceable as so modified.
Appears in 1 contract
Non-Competition; Non-Solicitation. Executive and Company agree to the non-competition and non-solicitation provisions of this Article VIII (i) as part of the consideration for the compensation and benefits to be paid to Executive hereunder, (ii) to protect the trade secrets and confidential information of Company or its affiliates disclosed or entrusted to Executive by Company or its affiliates or created or developed by Executive for Company or its affiliates, the business goodwill of Company or its affiliates developed through the efforts of Executive and/or the business opportunities disclosed or entrusted to Executive by Company or its affiliates and (iii) as an additional incentive for Company to enter into this Agreement.
(a) The Seller Subject to the exceptions set forth in section 8.2(b) below, Executive expressly covenants and ▇'▇▇▇▇▇▇ acknowledge agrees that in order to assure during the Buyer that the Buyer will retain the value of the AssetsProhibited Period, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing he will refrain from carrying on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingengaging in, directly or indirectly, as a partnerany Competing Business in the Restricted Area and (ii) he will not, officerand he will cause his affiliates not to, employeedirectly or indirectly, consultant own, manage, operate, join, become an employee of, control or otherwise, own or operate any business or Person, or otherwise become participate in or be interested in, or associate connected with or render assistance loan money to, sell or lease equipment to or sell or lease real property to any Person business, individual, partnership, firm, corporation or other entity which engages in a Competing Business in the Restricted Area.
(other than b) Notwithstanding the Buyerrestrictions contained in Section 8.2(a), engaged in the business of marketing Executive or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making his affiliates may own an aggregate of passive investments of five percent (5%) or less not more than 2.5% of the outstanding stock of any company class of any corporation engaged in a Competing Business, if such stock is listed on a national securities exchange or regularly traded in the over-the-counter market;
(b) Each market by a member of a national securities exchange, without violating the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree thatprovisions of Section 8.2(a), after giving effect to provided that neither Executive nor any of his affiliates has the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retainpower, directly or indirectly, to control or direct the management or affairs of any Person who such corporation and is (or during not involved in the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer management of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Productscorporation.
(c) Except as may Executive further expressly covenants and agrees that during the Prohibited Period, he will not, and he will cause his affiliates not to (i) engage or employ, or solicit or contact with a view to the engagement or employment of, any person who is an officer or employee of Company or its affiliates or (ii) canvass, solicit, approach or entice away or cause to be required in canvassed, solicited, approached or enticed away from Company or its subsidiaries any person who or which is a customer of any of such entities during the business of period during which Executive is employed by Company. Notwithstanding the Buyer after the Closingforegoing, the Seller and ▇'▇▇▇▇▇▇ restrictions of clause (i) of this Section 8.2(c) shall not at any timeapply with respect to (A) an officer or employee whose employment has been involuntarily terminated by his or her employer (other than for cause), directly (B) an officer or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past employee who has voluntarily terminated employment with Company and its affiliates and who has not been employed by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of such entities for at least one year, (C) an employee who is paid on an hourly basis, or (D) an officer or employee who responds to a general solicitation that is not specifically directed at officers and employees of Company or its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereofaffiliates.
Appears in 1 contract
Sources: Employment Agreement (Complete Production Services, Inc.)
Non-Competition; Non-Solicitation. (a) The In consideration of the benefits of Seller hereunder and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the induce Buyer that the Buyer and SmarTalk to enter into this Agreement, Seller will retain the value of the Assetsnot, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated Closing Date (such period shall be referred to as the "FIRST COVENANT PERIODNon- Competition Period"), they will not compete except as set forth in Section 6.1(b) hereof, directly or indirectly engage in or hold an interest in any business (whether by ownership of debt or equity or otherwise managing, operating, controlling, directing or participating in such business) providing prepaid long distance phone card products or services to retailers and other non-wholesale customers of the kind whose arrangements with Seller would if existing as of the date hereof constitute Customer Contracts or Pending Contracts hereunder in competition with Buyer and SmarTalk anywhere in the world (collectively, the "Proscribed Business"); provided, however, that nothing in this Section 6.1(a) shall:
(A) prohibit any company or other entity (including, without limitation, any joint venture) that has been acquired, in whole or in part, by, or otherwise engaged in a business combination with, Seller or any of its Subsidiaries and Affiliates affiliates from engaging in or holding an interest in a Proscribed Business if (i) the gross sales generated by such Proscribed Business in the latest financial statements of such company or other entity at the time of such acquisition constitutes no more than fifteen percent (15%) of such acquired company's or other entity's gross sales for such year; PROVIDED that the gross sales generated by such Proscribed Business does not constitute more than fifteen percent (15%) of such acquired company's or other entity's gross sales for each fiscal year (or, in questionthe case of a fiscal year ending after the Non-Competition Period, each fiscal quarter) ending during the balance of the Non-Competition Period and (ii) such company or other entity does not engage in business with any of the Key Customers in competition with Buyer and SmarTalk;
(B) prohibit Seller or any of its affiliates from acquiring shares of capital stock, partnership or other equity interests in any company or other entity (including, without limitation, any joint venture) that is engaged in a Proscribed Business, provided that such acquired interest does not represent more than five percent (5%) of the total equity of such entity;
(C) prohibit Seller or any of its affiliates from engaging in any joint marketing, promotion or merchandising programs of Seller's integrated telecommunications package (including, without limitation, the provision of products or services under the name and marks "Frontier" or "Rochester Telephone") with respect to any Proscribed Business for which the prepaid phone card products or services are not produced or provided by Seller or its affiliates or are requested on an unsolicited basis by then existing customers of Seller and its affiliates to whom Seller or its affiliates are providing at least one another service in Seller's core telecommunications package, PROVIDED that with respect to any new customers, Seller shall use its reasonable best efforts to grant Buyer or SmarTalk a right of first refusal (as described below in this Section 6.1(a)) to provide platform services in connection with such products and services at comparable levels of service and service quality and comparable prices to those available from other reputable producers or providers of prepaid phone card products or services (other than Seller and its affiliates);
(D) prohibit Seller or any of its affiliates from conducting any activities related to the Excluded Assets;
(E) prohibit Seller or any of its affiliates from engaging in a business combination with any company or other entity engaged in or holding an interest in a Proscribed Business if, following products: exercise and play matsthe consummation of such business combination, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS")common shareholders of Seller immediately prior to such business combination represent less than a majority of the common equity interest of the combined company or other entity; and
(F) prohibit Seller or any of its affiliates from engaging in or holding an interest in any business (whether by ownership of debt of equity or otherwise managing, operating, controlling, directing or participating in such business) providing phone card products or services other than prepaid long distance products and services to retailers and other non-wholesale customers of the kind whose arrangements with Seller would if existing as of the date hereof constitute Customer Contracts or Pending Contracts hereunder in competition with Buyer and SmarTalk (including, without limitation, the wholesale prepaid calling card business, the non-prepaid calling card business, the wireless prepaid calling card business, any activities of LinkUSA Corporation and the wholesale or other transport of messages originated using the prepaid cards of other carriers). Notwithstanding anything to the contrary contained in clauses (A), (C), (D) or (F) above, during the Non-Competition Period Seller shall not provide prepaid long distance phone card products or services through retail establishments anywhere in the world. Seller acknowledges and agrees that the geographic scope of the non-competition provisions of this Section 6.1(a) shall not be limited and that such geographic scope is reasonable. In connection with any right of first refusal granted to Buyer or SmarTalk described to clause (C) above, Seller shall provide Buyer with a written summary of a bona fide offer requesting platform services and Seller shall use its reasonable best efforts to grant Buyer and SmarTalk fifteen (15) calendar days to accept such offer or reject the same in writing. A failure by Buyer and SmarTalk timely to respond to such offer shall be deemed a rejection of the offer.
(b) Seller shall be deemed not to have breached the covenants in Section 6.1(a) by the act of acquiring any business during the Non-Competition Period if, upon such acquisition by Seller or any of its affiliates, Seller or such affiliate (i) uses its best efforts to divest or dispose as promptly as practicable on commercially reasonable terms that portion of the acquired business giving rise to such alleged breach under Section 6.1(a) or (ii) to the extent that Seller or any of its affiliates acquires a business engaged in business with any of the Key Customers in competition with Buyer or which provides prepaid long distance phone card products or services through retail establishments in competition with Buyer, the activities of Seller or such affiliate in respect of such Key Customer or such products or services are related solely to the satisfaction or fulfillment of the liabilities and obligations of such business to such Key Customer or in respect of such retail establishments as of the date of such acquisition; and neither Buyer nor SmarTalk will commence, or if commenced they will immediately discontinue, any efforts to enforce such covenants with respect to such acquisition by suit, petition for injunction or otherwise so long as such divestiture or disposal is being pursed in good faith by Seller or it affiliates.
(c) Seller shall use its reasonable best efforts to refer to Buyer any and all sales leads received by Seller during the Non-Competition Period with respect to prepaid phone card products or services prohibited to Seller pursuant to Section 6.1(a) hereof.
(d) Seller covenants and agrees that Seller, for a period commencing on of the Closing Date and expiring on the first to occur greater of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1B) year from the date the Management Services Agreement is terminated (such period shall be referred during which Seller continues to as the "SECOND COVENANT PERIOD"), they will not compete with the provide a significant level of telecommunications carrier services to Buyer and its Subsidiaries and Affiliates at the time in questionSmarTalk, in connection with the following products: toy sprinklerstaken as a whole, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingSeller will not, directly or indirectlythrough employees, as a partner, officer, employee, consultant or otherwise, own or operate any business or Personagents, or otherwise become others; offer, promise, provide or be interested inguarantee employment, or associate with solicit or render assistance to any Person (other than the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt otherwise seek to influence any Person (other than employees of the Seller providing consulting services person to leave Buyer at the time of Closing) to either terminate or modify SmarTalk, or who has been in such Person's an employment or other professional independent contractor relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during within the twelve (12) months prior thereto was) employed as an employee by the Buyer to such contact(s), or its Affiliates;
(B) influence solicit from, convert, attempt to convert, divert business from, or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling divert business from any of the Protected Products.
(c) Except as may be required customers of Buyer or SmarTalk in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Lineretail Prepaid Calling Card Business, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereofactivity is successful.
Appears in 1 contract
Sources: Asset Purchase Agreement (Smartalk Teleservices Inc)
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value Each of the AssetsConsultant and Litt agrees that it or he will not during the Term and, the Seller and ▇'▇▇▇▇▇▇ agree that:
(isubject to Section 7(b) hereof, for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documentssix months thereafter, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇engage in, or (B) the date which is the later of five (5) years from the Closing Date otherwise directly or two (2) years from the date the Management Services Agreement is terminated (such period shall indirectly be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇employed by, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participating, directly or indirectly, act as a partnerconsultant, advisor or lender to, or be a director, officer, employee, consultant stockholder, owner, or otherwisepartner of, own or operate any other business or Personorganization which competes with the Company or any parent, subsidiary, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer), engaged in the business of marketing or selling any affiliate of the Protected ProductsCompany. The foregoing Notwithstanding anything contained herein to the contrary, the provisions shall not, however, prohibit of this Section 7(a) will not be deemed breached merely because the making of passive investments of five percent (5%) Consultant or less Litt owns not more than 1% of the outstanding common stock of any company a corporation, if, at the time of its acquisition by the Consultant or Litt, such stock is listed on a national securities exchange exchange, is reported on NASDAQ, or is regularly traded in the over-the-counter market;market by a member of a national securities exchange.
(b) Each In the event that the average monthly payments to the Consultant during the six month period immediately preceding the expiration of the Seller Term or earlier termination of this Agreement equal or exceed $6,000 per month, the period during which the Consultant and ▇'▇▇▇▇▇▇ and their respective Affiliates agree thatLitt shall be prohibited from competing with the Company or any parent subsidiary or affiliate of the Company shall be extended for six months. If the average monthly payments during such six month period are less than $6,000 per month, after giving effect the Company shall have the option to extend the non-compete period for the additional six months by paying to the purchase Consultant, in a lump sum, an amount equal to $36,000 less the amount actually paid to the Consultant pursuant to this Agreement during such six month period. The Company may exercise such option by giving the Consultant written notice thereof and by making the required payment within 10 business days of the Assets at expiration of the Closing, it Term or he will not directly or indirectly, during the First Covenant Period and Second Covenant Periodearlier termination of this Agreement, as the case may be, for its or his own benefit or for the benefit of any other Person:.
(Ac) influence or attempt to influence any Person (other than employees Each of the Seller providing consulting services to Buyer at Consultant and Litt agrees that for a period of two years from the time termination of Closing) to either terminate this Agreement it or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retainhe will not, directly or indirectly, employ or solicit the employment or engagement by others of any Person who employees of, or consultants hired by, the Company or any future parent, subsidiary or affiliate of the Company, within a period of one year after such person is (no longer employed or during the twelve (12) months prior thereto was) employed as an employee retained by the Buyer Company or its Affiliates;
(B) influence any future parent, subsidiary or attempt to influence a supplier or customer affiliate of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected ProductsCompany.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereof.
Appears in 1 contract
Sources: Consulting Agreement (American Technical Ceramics Corp)
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure During the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing on the Closing Date and expiring ending on the first three year anniversary of that Closing Date in respect of the Territory, Seller shall not, and shall cause each of its Affiliates not to:
(a) engage in the oil and gas land contract drilling rig business in the Territory; provided, however, that, nothing in this Section 5.13 shall prohibit Seller or its Affiliates from disposing of the remainder of its rigs currently outside the Territory to occur any Person (whether or not a competitor of (APurchaser) a breach by Toymax and regardless of when or how such Person deploys or locates such rigs throughout the Buyer world; provided, further, that, for the purposes of this Section 5.13(a), ownership of securities having no more than 1% of the outstanding voting power of any Person which are listed on any national securities exchange will not be deemed to be in violation of their material obligations to this Section 5.13(a) as long as the Seller Person owning such securities has no other connection or ▇'▇▇▇▇▇▇ under relationship with such Person; and
(b) (i) solicit any Transferring Employee or any other employee of Purchaser or a Designated Affiliate in the Territory away from or out of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, employ of Purchaser or a Designated Affiliate unless such individual will have ceased to be employed by Purchaser or a Designated Affiliate for a period of at least six months prior thereto or (Bii) solicit the date which customer of Purchaser or a Designated Affiliate who is at Closing or who has been at any time during the later twelve months immediately preceding Closing a client or customer of five the Business with a view to providing goods or service, to such customer in competition with the Business (5or any part of it) years from as it was carried on at the Closing Date or two (2) years from in the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from twelve months immediately preceding the Closing Date or one (1iii) year from cause, induce or attempt to cause or induce any customer, strategic partner, supplier, distributor, landlord or others doing business with Purchaser or a Designated Affiliate in the date Territory and relating to the Management Services Agreement is terminated Purchased Assets (such period shall be referred including any Independent Contractors) to as cease or reduce the "SECOND COVENANT PERIOD")extent of its business relationship with Purchaser or a Designated Affiliate or to deal with any competitor of Purchaser or a Designated Affiliate; provided, they however, that this Section 5.13(b) will not compete with the Buyer be deemed to prohibit Seller and its Subsidiaries and Affiliates at from engaging in general media advertising or solicitation that may be targeted to a particular geographic or technical area but that is not targeted towards any Transferring Employees or employees of Purchaser or a Designated Affiliate in the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participating, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate any business or PersonTerritory, or otherwise become or be interested in, or associate with or render assistance to hiring any Person (other than the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect that responds to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Productssolicitation.
(c) Except as may The covenants in Section 5.13 are intended to be required for the benefit of, and shall be enforceable by Purchaser or its Designated Affiliates and apply to actions carried out by Seller (or any of its Affiliates) in the business of the Buyer after the Closing, the Seller any capacity and ▇'▇▇▇▇▇▇ shall not at any time, whether directly or indirectly, use on its own behalf or purport to authorize on behalf of, or jointly with, any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that person. Each of the Buyer covenants in Section 5.13 is a separate undertaking by Seller and shall be enforceable by Purchaser or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any Designated Affiliates separately and independently of their Subsidiaries right to enforce any one or Affiliates at more of the date hereof.other covenants contained in that clause. 434397/HOUDMS
Appears in 1 contract
Sources: Sale and Purchase Agreement (Weatherford International PLC)
Non-Competition; Non-Solicitation. (a) The Seller Except as provided in Section 5.6(g) below, in furtherance of the consideration being paid by Purchaser and European Purchasers to Sellers hereunder, Sellers agree that, during the period beginning on the Closing Date and ending on the fifth (5th) anniversary of the Closing Date (such period, the “Restricted Period”), neither Sellers nor any of their Affiliates shall directly or indirectly own any interest in, manage, control, participate in (whether as an officer, director, employee, partner, agent, representative, or otherwise), consult, render services, organize, plan to organize, or in any manner engage, or make any preparation to engage, anywhere in the world in any activity or enterprise competing with the Business; provided that, subject to the restrictions in Section 5.7, which are not modified hereby, Sellers shall not be liable if Third Security, LLC and ▇'▇. ▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value ▇. Kirk shall take any action prohibited by this Section 5.6(a) unless any Seller or any of the Assets, the Seller and their respective Affiliates (other than Third Securities LLC or ▇'▇. ▇▇▇▇▇▇ agree that:
(i) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (participate in such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participating, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;action.
(b) Sellers acknowledge and agree that the geographical restrictions and the length of the non-compete and non-solicitation periods are reasonable and narrowly drawn to impose no greater restraint than is necessary to protect the goodwill of the Business and to protect Purchaser’s legitimate interest in the enjoyment of the Business. Each of Purchaser, European Purchaser and Sellers intend that the Seller covenants of this Section 5.6(a) and ▇'▇▇▇▇▇▇ Section 5.6(c) shall be deemed to be a series of separate covenants, one for each county or province of each and their respective Affiliates agree thatevery state, after giving effect to territory or jurisdiction of each country within the purchase world, and one for each month of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify periods covered by such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Productscovenants.
(c) Except as may permitted by Section 5.6(g) below, Sellers agree that neither Sellers nor any of their Affiliates shall, whether directly or indirectly, during the Restricted Period do any of the following: (i) solicit the employment of or hire any current employee (or any employee who was employed by Sellers (for the performance of services solely for the Acquired Companies) or any of the Acquired Companies for any type of employment within the eighteen (18) month period prior to the Closing) of any of the Acquired Companies without the prior written consent of Purchaser, provided, however, that nothing herein shall prohibit Sellers or any of their Affiliates from making general solicitation advertisements that are not targeted at such employees; (ii) call on, solicit, or service any supplier, prospective supplier, licensee, licensor, or other business relation of any of the Acquired Companies with respect to products or services related to the Business in order to influence or induce or attempt to influence or induce such Person to decrease or cease doing business with any Acquired Company, or in any way otherwise interfere with the business relations of the Acquired Companies; (iii) make any statement or do any act intended to cause existing or potential customers of any of the Acquired Companies to make use of the services or purchase the services or products of any competitive business; or (iv) induce or attempt to induce any employee of any of the Acquired Companies to leave his or her employ or in any way interfere with the relationship between any Acquired Company and its employees.
(d) If Sellers or any of their Affiliates breach or threaten to commit a breach of any of the restrictive covenants set forth in this Section 5.6, then Purchaser and European Purchasers shall have the following rights and remedies against Sellers which are in addition to, and not in lieu of, any other rights and remedies otherwise available to Purchaser at Law or in equity for Seller’s and/or its Affiliates’ actions:
(i) the right and remedy to have the restrictive covenants in this Section 5.6 specifically enforced against Sellers and/or their Affiliates, including temporary restraining orders and injunctions by any court of competent jurisdiction, it being agreed by Sellers that any breach or threatened breach by Sellers or any of its Affiliates of this Section 5.6 would cause irreparable injury to Purchaser and that money damages would not provide an adequate remedy to Purchaser;
(ii) the right and remedy to require Sellers to account for and pay over to Purchaser any monies and benefits derived or received directly or indirectly, from any transaction constituting a breach of this Section 5.6; and
(iii) the right and remedy to collect from Sellers any costs and fees of Sellers and/or its Affiliates incurred in enforcing this Section 5.6, including reasonable attorneys’ fees.
(e) If, during the enforcement of any or all of the covenants and provisions set forth in this Section 5.6, any court of competent jurisdiction enters a final judgment that declares that the duration, scope, or area restrictions stated herein are unreasonable under circumstances then existing, are invalid, or are otherwise unenforceable, then the parties hereto agree that the maximum enforceable duration, scope, or area reasonable under such circumstances shall be required substituted for the stated duration, scope, or area, and that the court making the determination of invalidity or unenforceability shall have the power to revise 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 the closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified to cover the maximum duration, scope, or area permitted by Law.
(f) Sellers agree that in the event a court of competent jurisdiction declares that there has been a breach by Sellers of this Section 5.6, the term of any such covenant so breached shall be automatically extended for the period of time of the violation from the date on which such breach ceases or from the date of the entry by a court of competent jurisdiction of a final non-appealable order enforcing such covenant, whichever is later.
(g) Notwithstanding the terms of this Section 5.6 neither Sellers nor any of their Affiliates shall be prohibited from being a beneficial owner of not more than five percent (5%) of the outstanding stock of any class of Person which is publicly traded and which enterprise is competitive with the Business, so long as Sellers or any of their Affiliates have no active participation in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ such Person;
(h) Sellers shall not at be responsible for any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past breach of this Section 5.6 by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at Affiliates.
(i) Each of the date hereofparties considers the provisions of this Section 5.6 to be fair and reasonable in order to protect their respective legitimate business interests.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Seller shall abstain and ▇'▇▇▇▇▇▇ acknowledge that in order shall cause their Related Persons to assure the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
abstain: (i) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years to the third anniversary thereof, from starting a new business directly competing with the business of the Company and the Subsidiaries in any country in which the Company and the Subsidiaries are doing business as of the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer of this Agreement; and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date to the first anniversary thereof, from acquiring any business or one (1) year entity whatsoever which more than 25% of the prior year's revenues derived from a contract stationers business in any of the countries in which the Company and the Subsidiaries are doing business as of the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") of this Agreement; it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys this shall not be considered Protected Products. For purposes restrict the operations of any of the businesses owned or operated by the Seller or its Related Persons as of the date of this Section 5.7Agreement.
(b) For a period of two years after the date of this Agreement, neither the term compete shall include acting or participatingSeller nor any of its Related Persons shall, directly or indirectly, as a partnersolicit or induce any employee of the Company or of any of the Subsidiaries, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise to leave such employment and become or be interested in, or associate with or render assistance to an employee of any Person (other than the Buyer)Company and the Subsidiaries; PROVIDED HOWEVER, engaged that nothing in the business of marketing or selling any of the Protected Products. The foregoing provisions this Article 9 shall not, however, prohibit the making of passive investments of five percent Seller or its Related Persons from employing (5%i) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is contacts them on his or her own six (or during the twelve (126) months prior thereto was) employed as an employee after the date of this Agreement, provided such Person had not been solicited by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, Seller or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Products.
(c) Except as may be required in the business of the Buyer their Related Persons after the Closing, or (ii) the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or Persons listed in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereofSCHEDULE 9(b).
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Seller and For a period of two (2) years following the Closing, ▇'▇▇▇▇▇▇▇▇▇ acknowledge shall not, and shall cause his Affiliates not to, directly or indirectly through any Person or contractual arrangement:
(i) other than for Buyer, Parent or their Affiliates, engage in the Core Business anywhere in New York; Connecticut; New Jersey; Washington, D.C.; Chicago, Illinois; Los Angeles, California; Las Vegas, Nevada; Boston, Massachusetts; and Philadelphia, Pennsylvania; provided, however, that in order to assure the Buyer that the Buyer will retain the value of the Assets, the Seller and this Section 5.2(a)(i) shall not prohibit ▇'▇▇▇▇▇▇▇▇▇ agree that:
or his Affiliates (iincluding Tishman Hotel & Realty LP, TTV Realty Holdings, Inc. and their respective Affiliates) or any other Person in which any of them own, directly or indirectly, any interest from (x) engaging, anywhere at any time, in any of the THR Activities or in any other activities so long as such other activities are consistent with the services that have been provided from time to time by the Sellers or any of their Affiliates (other than the Company and its Subsidiaries) prior to the Closing, (y) engaging in the Core Business anywhere at any time (including supervising any third parties engaged in the Core Business) solely with respect to projects for a period commencing on the Closing Date and expiring on the first to occur account of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇▇▇▇ under and/or his Affiliates (including Tishman Hotel & Realty LP, TTV Realty Holdings, Inc. and their respective Affiliates) or any other Person in which any of them own, directly or indirectly, any interest and/or (B) an employer of ▇▇▇▇▇▇▇▇▇▇ or any of such employer’s Affiliates (including Tishman Hotel & Realty LP, TTV Realty Holdings, Inc. and their respective Affiliates) or (z) making passive investments in any publicly traded company representing 5% or less of the Transaction Documentsoutstanding capital stock of any such entity; or
(ii) solicit, which breach recruit or hire any person who at any time on or after the date hereof is a Company Group Employee (as hereinafter defined); provided, that the foregoing shall not cured within sixty prohibit (60i) days after notice thereof from a general solicitation to the Seller and public or general advertising or similar methods of solicitation by ▇'▇▇▇▇▇▇▇▇▇, his Affiliates (including Tishman Hotel & Realty LP, TTV Realty Holdings, Inc. and their respective Affiliates) or (B) the date which is the later of five (5) years from the Closing Date search firms not specifically directed at Company Group Employees or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇▇▇▇ under or any of his Affiliates (including Tishman Hotel & Realty LP, TTV Realty Holdings, Inc. and their respective Affiliates) from soliciting, recruiting or hiring any Company Group Employee (x) at any time six (6) months or more after (or, in the Transaction Documentscase of those Company Group Employees set forth in Schedule 5.2(a)(ii) of the Disclosure Letter, which breach is not cured within sixty (60at any time after) days after notice thereof from such Company Group Employee has voluntarily ceased to be employed or retained by the Seller and ▇'▇▇▇▇▇▇Company, the Buyer, the Parent or any of their respective Affiliates, or (By) at any time after a Company Group Employee has been involuntarily terminated by the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectivelyCompany, the "PROTECTED PRODUCTS") it being understood and agreed that water gunsBuyer, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Productsthe Parent or any of their respective Affiliates. For purposes of this Section 5.75.2, “Company Group Employees” means, collectively, officers, directors and employees of the Company, the term compete shall include acting or participatingBuyer, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ Parent and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Products.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereof.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure From the Buyer that Closing Date through the Buyer will retain the value end of the Assetsthree-year period beginning on the first day following of the Closing (the “Noncompetition Period”), the Seller and ▇'▇▇▇▇▇▇ Cliffstar Companies agree thatnot to, directly or indirectly:
(i) engage in a “Competitive Business,” which for the purpose of this Agreement means a period commencing on private label, shelf stable juice business that competes with the Business as conducted as of the Closing Date and expiring on whose principal executive office is located anywhere within the first to occur of (A) a breach by Toymax United States or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS")Canada; andor
(ii) either: (A) solicit for a Competitive Business or endeavor to entice away, any Person who placed an order with the Cliffstar Companies within the twelve-month period commencing on immediately prior to the Closing Date; (B) (1) solicit, recruit or hire any employees of the Cliffstar Companies or Persons who work for any Cliffstar Company as of the Closing Date in order to engage in a Competitive Business; and/or (2) encourage any employee of the Cliffstar Companies to leave the employment of the same in order to engage in a Competitive Business; or (C) assist any Person or entity in any way to do, or attempt to do, anything prohibited by this Section 5.04(a) (except for responding to requests for reference checks).
(b) Nothing in this Section 5.04 shall preclude or prohibit the Cliffstar Companies from (i) owning not more than 5% of the equity interests of any Person that is engaged in any Competitive Business, and expiring on the first to occur (ii) acquiring (whether by means of (Aacquisition, asset purchase, merger, consolidation, similar business combination or otherwise) a breach Person engaged in a Competitive Business together with other lines of business if the percentage of such Competitive Business represents no more than 10% of the acquired Person’s assets (measured by Toymax the most current financial statements published by the acquired Person in the ordinary course of business) and does not relate to the Competitive Business.
(c) During the Noncompetition Period, no Cliffstar Company shall, or the Buyer of permit any of their material obligations to its Affiliates or Representatives (including the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60Sellers’ Representative) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingto, directly or indirectly, as a partnerhire or solicit any Business Employee who is offered employment by Purchaser, officer, employee, consultant or otherwise, own or operate any business or PersonPurchaser Sub, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to or is or was employed in the purchase of the Assets at the Closing, it or he will not directly or indirectly, Business during the First Covenant Period and Second Covenant Noncompetition Period, as the case may be, for its or his own benefit or for the benefit of encourage any other Person:
(A) influence or attempt such employee to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify leave such Person's employment or other professional relationship with the Buyer and/or its Affiliateshire any such employee who has left such employment, or employ, consult or otherwise retain, directly or indirectly, except pursuant to a general solicitation which is not directed specifically to any Person who is (or during the twelve (12such employees; provided that nothing in this Section 5.04(c) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or shall prevent any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Products.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer Cliffstar Company or any of their Subsidiaries Affiliates from (i) publishing general recruitment/help wanted advertisements or making other general postings via other media of employment opportunities or listings, so long as such advertisement, posting or listing is not specifically targeted to Business Employees or (ii) hiring (x) any Business Employee whose employment has been terminated by Purchaser, Purchaser Sub, or any of their respective Affiliates at or (y) after 180 days from the date hereofof termination of employment, any Business Employee whose employment has been terminated by such Business Employee or (z) a Business Employee who responds to any general recruitment/help wanted advertisement or other general posting contemplated in clause (i) of this proviso.
Appears in 1 contract
Non-Competition; Non-Solicitation. The Executive and the Company agree to the non-competition and non-solicitation provisions of this Paragraph 10(i) in consideration for the Confidential Information provided by the Company to the Executive pursuant to Paragraph 9; (aii) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value as part of the Assetsconsideration for the compensation and benefits to be paid to the Executive hereunder; (iii) to protect the trade secrets and confidential information of the Company or its Affiliates disclosed or entrusted to the Executive by the Company or its Affiliates or created or developed by the Executive for the Company or its Affiliates, the Seller business goodwill of the Company or its Affiliates developed through the efforts of the Executive and/or the business opportunities disclosed or entrusted to the Executive by the Company or its Affiliates; and ▇'▇▇▇▇▇▇ agree that:(iv) as an additional incentive for the Company to enter into this Agreement.
(i) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations Subject to the Seller or ▇'▇▇▇▇▇▇ under any of exceptions set forth in Paragraph 10(b)(ii), the Transaction Documents, which breach is not cured within sixty Executive covenants and agrees that during the Prohibited Period (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (Ba) the date which is the later of five (5) years Executive will refrain from the Closing Date carrying on or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingengaging in, directly or indirectly, as a any Competing Business in the Restricted Area and (b) the Executive will not, and the Executive will cause the Executive’s affiliates not to, directly or indirectly, own, manage, operate, join, become an employee, partner, officerowner or member of (or an independent contractor to), employeecontrol or participate in or loan money to, consultant sell or otherwise, own lease equipment to or operate any business sell or Person, or otherwise become or be interested in, or associate with or render assistance lease real property to any Person business, individual, partnership, firm, corporation or other entity which engages in a Competing Business in the Restricted Area.
(other than ii) Notwithstanding the Buyerrestrictions contained in Paragraph 10(b)(i), engaged in the business of marketing Executive or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making Executive’s affiliates may own an aggregate of passive investments of five percent (5%) or less not more than 1% of the stock outstanding voting securities of any company class of an entity engaged in a Competing Business, if such securities are listed on a national securities exchange or regularly traded in the over-the-counter market;
(b) Each market by a member of a national securities exchange, without violating the provisions of Paragraph 10(b), provided that neither the Executive nor any of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
Executive’s affiliates (A) influence or attempt to influence any Person (other than employees of has the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retainpower, directly or indirectly, any Person who is (to control or during direct the twelve (12) months prior thereto was) employed as an employee by the Buyer management or its Affiliates;
affairs of such entity and (B) influence or attempt to influence a supplier or customer is involved in the management of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Productsentity.
(ciii) Except as may be required in The Executive further covenants and agrees that during the business Prohibited Period, the Executive will not, and the Executive will cause the Executive’s affiliates not to (a) engage or employ, or solicit or contact with a view to the engagement or employment of, any person who is an officer or employee of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer Company or any of its Subsidiaries Affiliates or Affiliates. As used herein(b) canvass, solicit, approach or entice away or cause to be canvassed, solicited, approached or enticed away from the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer Company or any of their Subsidiaries its Affiliates any person who or Affiliates at which is a customer of any of such entities during the date hereofperiod during which the Executive is employed by the Company.
(iv) The Executive may seek the written consent of the Company, which may be withheld for any or no reason, to waive the provisions of this Paragraph 10 on a case-by-case basis.
(v) The Executive recognizes that the Executive is a high-level, executive employee who will be provided with access to trade secrets as part of the Executive’s employment and that the restrictive covenants set forth in this Paragraph 10(b) are reasonable and necessary in light of the Executive’s position and access to the Company’s trade secrets.
Appears in 1 contract
Sources: Employment Agreement (Dril-Quip Inc)
Non-Competition; Non-Solicitation. (a) The Seller In consideration of the benefits to the Belvedere Members hereunder and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value induce Holding to enter into this Agreement, each of the Assets, the Seller Belvedere Members hereby covenants and ▇'▇▇▇▇▇▇ agree that:
(i) agrees that for a period commencing on the Closing Date date hereof and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) ending one year following the date on which is such Belvedere Member ceases to own any Interest in the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period Company, he shall be referred not, and he will cause his Affiliates to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingnot, directly or indirectly, anywhere as a proprietor, partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person stockholder (other than the Buyer), engaged in the business holder of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) 1% or less of the stock of any company listed a corporation the securities of which are traded on a national securities exchange or traded in the over-the-counter market;), director, officer, employee, joint venturer, investor, lender or in any other capacity own, engage in, conduct, manage, operate or control, or participate in, be associated or connected in any manner whatsoever with the ownership, management, operation or control of, any business which competes with any operation conducted by the Company, within the following geographic areas: North America and Europe. Notwithstanding the foregoing, if on the date that is one year following the termination of such Belvedere Member’s termination of employment with the Company, such Member continues to hold any Interest in the Company, the Company shall take such actions as are reasonably necessary to waive the provisions of this Section 6.9.
(b) Each For a period commencing on the date hereof and ending two years following the date on which any Belvedere Member ceases to own any Interest in the Company, such Belvedere Member shall not, and shall cause his Affiliates to not, without the prior written approval of Holding, directly or indirectly solicit, encourage, entice or induce any of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services Company to Buyer at the time of Closing) to either terminate his or modify such Person's employment or other professional her relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected ProductsCompany.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller Each Belvedere Member acknowledges and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with agrees that of the Buyer if he or any of its Subsidiaries his Affiliates breaches any provision of this Section 6.9, such breach would subject the Company and Holding to irreparable harm and that any such breach shall entitle the Company and Holding, in addition to any actual damages caused by such breach and other remedies available to the Company and/or Holding, to immediate and permanent injunctive relief against such Member to prevent or Affiliatesmitigate any harm that might be caused to the Company or Holding, as applicable, by such breach of this Section 6.9. As used hereinIn addition, any license granted pursuant to the phrase "competitive business" means terms of Section 10.7 shall immediately terminate upon any business competitive with such breach of this Section 6.9.
(d) It is the type desire of business engaged the Members and the Company that this Section 6.9 be binding and enforceable to the maximum extent permitted by law. The Members and the Company agree that if, in by any action or arbitration relating to this Section 6.9, any provision, term, right, restriction, covenant or promise in this Section 6.9 is found to be invalid, illegal, or unenforceable for any reason, then such provision, right, restriction, covenant or promise shall be deemed modified (and the Seller, Members and the Buyer Company agree to seek to have the court or any of their Subsidiaries or Affiliates at arbitrator make such modification) to the date hereofminimum extent necessary to make it valid and enforceable.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Seller Member covenants and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree agrees that:
(i) for a during the period commencing beginning on the Closing Date and expiring ending on the first to occur fifth anniversary of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date (the “Restricted Period”), Member shall not, and shall cause its Affiliates to not, other than on behalf of Buyer, Buyer Ultimate Parent and their respective subsidiaries, engage, directly or indirectly, anywhere in the world in the development, sale, resale or license of Terminal Operating Systems or Marine Terminal Software; provided that, nothing herein shall prohibit the acquisition or ownership of up to two percent (2%) years from of the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD")outstanding stock of a publicly-traded company that develops, they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in questionsells, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS")resells or licenses Terminal Operating Systems; andor
(ii) for a during the period commencing beginning on the Closing Date and expiring ending on the first to occur second anniversary of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"“Solicitation Restricted Period”), they will not compete with the Member shall not, other than on behalf of Buyer, Buyer Ultimate Parent and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingtheir respective Subsidiaries, directly or indirectly: (a) solicit, as a partner, officer, employee, consultant entice or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to induce any Person (other than employed or engaged during the Buyer), engaged Solicitation Restricted Period in the business of marketing Business as conducted by Buyer, Buyer Ultimate Parent or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree thatSubsidiaries (including, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period from and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Products.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller Company), to terminate his or her employment or engagement with, or not accept an employment or consulting arrangement with, Buyer, Buyer Ultimate Parent or any of their respective Subsidiaries (including, from and ▇'▇▇▇▇▇▇ shall after the Closing, the Company), except for general solicitations of employment (such as a newspaper advertisement or on radio or television) not specifically directed to any Person employed during the Solicitation Restricted Period in the Business as conducted by Buyer, Buyer Ultimate Parent or any of their respective Subsidiaries or (b) hire any Person identified on Schedule 5.16(a) who at the time of hiring, or at any time, directly time within the 12 months before such hiring is or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that was an employee of the Buyer Company or any of its Subsidiaries or Affiliates. As used hereinThe obligations described in clause (b) of the immediately preceding sentence shall not apply to any Person who is terminated without cause by Buyer, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer Ultimate Parent or any of their respective Subsidiaries after the Closing.
(b) Member acknowledges and agrees that the restrictions contained in Section 5.13(a) are a reasonable and necessary protection of the immediate interests of Buyer, Buyer Ultimate Parent and the Company, and that Buyer and Buyer Ultimate Parent would not have entered into this Agreement without receiving the consideration offered by Member in binding Member and its Affiliates to these restrictions. If any provision contained in Section 5.13(a) shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of Section 5.13(a), but Section 5.13(a) shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. It is the intention of the parties that if any of the restrictions or covenants contained herein is held to cover a geographic area or to be for a length of time that is not permitted by applicable Law, or in any way construed to be too broad or to any extent invalid, such provision shall not be construed to be null, void and of no effect, but to the extent such provision would be valid or enforceable under applicable Law, a court of competent jurisdiction shall construe and interpret or reform Section 5.13(a) to provide for a covenant having the maximum enforceable geographic area, time period and other provisions (not greater than those contained herein) as shall be valid and enforceable under such applicable Law. The parties agree that Section 5.13(a)(i) is not intended to restrict Member or its Affiliates at from any activities with respect to products or services offered by Member and/or its Affiliates (other than the date hereofSubsidiaries) other than Terminal Operating Systems or Marine Terminal Software.
Appears in 1 contract
Sources: Securities Purchase Agreement (Zebra Technologies Corp)
Non-Competition; Non-Solicitation. (a) The Seller Each of the Sellers acknowledges that (v) the Transferred Companies are engaged in the business of manufacturing and ▇'▇▇▇▇▇▇ acknowledge that marketing vinyl siding, windows, patio doors, fencing, railing and decking for the residential repair/remodeling and new construction markets (the "TRANSFERRED COMPANY BUSINESS"); (w) the Company Business is conducted throughout the United States of America and Canada; (x) its ownership until the Closing Date of the Transferred Companies has given it trade secrets of and confidential information concerning the Transferred Companies; (y) the agreements and covenants contained in order this Section 6.19 are essential to assure protect the business and goodwill of the Transferred Companies; and (z) the Buyer that would not purchase the Buyer will retain the value of the AssetsShares but for such agreements and covenants. Accordingly, the Seller each covenants and ▇'▇▇▇▇▇▇ agree thatagrees as follows:
(i) for For a period of two (2) years commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT RESTRICTED PERIOD"), they will not compete with no Seller shall, in the United States of America or in Canada, directly or indirectly, (A) engage in the Transferred Company Business for such Seller's own account; (B) except as agreed to in writing by the Buyer and its Subsidiaries and Affiliates at such Seller, render any services to any Person engaged in the time Transferred Company Business or for use in question, in connection competing with the following products: exercise Transferred Company Business; (C) have an interest in any Person engaged in the Transferred Company Business in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; PROVIDED, HOWEVER, a Seller may own, directly or indirectly, solely as an investment, securities of any Person traded on any national securities exchange if such Seller is not a controlling Person of, or a member of a group which controls, such Person and play matsdoes not, foam swim toysdirectly or indirectly, foam pool toys own 5% or more of any class of securities of such Person; or (D) interfere in any material respects with business relationships (whether formed prior to or after the date of this Agreement) between any Transferred Company and foam floats (the "FIRST PROTECTED PRODUCTS")customers or suppliers of any Transferred Company; and
(ii) for a period commencing on Without the Closing Date and expiring on prior written consent of the first to occur of (A) a breach by Toymax Buyer, during the Restricted Period, no Seller shall, directly or the Buyer indirectly, hire or solicit any employee of any of their material obligations Transferred Company or encourage any such employee to the Seller leave such employment or ▇'▇▇▇▇▇▇ under hire any of the Transaction Documents, which breach is not cured such employee who has left such employment within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from of the date the Management Services Agreement termination of such employment, except pursuant to a general solicitation which is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participating, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance directed specifically to any Person (other than the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;such employees.
(b) Each If any Seller breaches, or threatens to commit a breach of, any of the Seller provisions of Section 6.19, each of the Buyer and ▇'▇▇▇▇▇▇ each Transferred Company shall have the following rights and their respective Affiliates agree thatremedies, after giving effect each of which rights and remedies shall be independent of the others and severally enforceable, and each of which is in addition to, and not in lieu of, any other rights and remedies available to any of the Buyer or any Transferred Company under law or in equity:
(i) The right and remedy to have such provision specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to each of the Buyer and each Transferred Company and that money damages would not provide an adequate remedy to the purchase of Buyer or any Transferred Company; and
(ii) The right and remedy to require each Seller to account for and pay over to the Assets at the Closing, it Buyer or he will not directly or indirectly, during the First Covenant Period and Second Covenant Periodany Transferred Company, as the case may be, for its all compensation, profits, monies, accruals, increments or his own benefit other benefits derived or for received by such Seller as the benefit result of any other Person:
(A) influence or attempt to influence any Person (other than employees transactions constituting a breach of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Productsprovision.
(c) Except Each Seller acknowledges and agrees that as may to it the provisions of this Section 6.19 are reasonable and valid in geographical and temporal scope and in all other respects. If any court of competent jurisdiction determines that all or any part of any of this Section 6.19 is invalid or unenforceable as to one or more of the Sellers, the remainder of this Section 6.19 shall not be required affected and shall be given full effect as to the Sellers or such Seller, without regard to the invalid portions.
(d) If any court of competent jurisdiction determines that all or any part of this Section 6.19 is unenforceable as to one or more of the Sellers, such court shall have the power to reduce the scope of this Section 6.19, as to the Sellers or such Seller, and, in its reduced form, such provision shall then be enforceable.
(e) The Buyer and each Seller intend to and confer jurisdiction to enforce the business provisions of this Section 6.19 upon the courts of any jurisdiction within the geographical scope specified in Section 6.19(a). If the courts of any one or more of such jurisdictions hold the provisions of this Section 6.19 unenforceable by reason of the breadth of such scope or otherwise, it is the intention of the Buyer after the Closing, the and each Seller and ▇'▇▇▇▇▇▇ shall that such determination not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently bar or in any way affect the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that right of the Buyer or any Transferred Company to the relief provided above in the courts of its Subsidiaries or Affiliates. As used hereinany other jurisdiction within the geographical scope specified in Section 6.19(a), as to breaches of the provisions of this Section 6.19 in such other respective jurisdictions, the phrase "competitive business" means any business competitive with the type provisions of business engaged in by the Sellerthis Section 6.19 as they relate to each jurisdiction being, the Buyer or any of their Subsidiaries or Affiliates at the date hereoffor this purpose, severable into diverse and independent covenants.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for For a period commencing beginning on the Closing Date and expiring on (the first to occur of (A“Commencement Date”) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) until the date which is twenty-four (24) months after the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD")Commencement Date, they each Seller will not compete with the Buyer not, and will cause its Subsidiaries respective members and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingto, directly or indirectly, as a partnerown, officeracquire, employeemanage, consultant operate, control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, own or operate any business or Personthat is engaged in, or otherwise become competes with, the businesses of Buyer or BERMASE, as presently conducted or proposed to be interested inconducted, anywhere where BERMASE’s or associate with Buyer’s business is presently conducted or render assistance presently proposed to be conducted. The parties hereto specifically acknowledge and agree that the remedy at law for any breach of the foregoing may be inadequate and that Buyer, in addition to any Person (other than relief available to it, will be entitled to seek temporary and permanent injunctive relief without the Buyer), engaged in the business necessity of marketing proving actual damage or selling posting any bond whatsoever. Nothing herein contained shall be deemed to prohibit any Seller or any of their respective members and Affiliates from investing funds, solely on a passive basis, in securities of a corporation or partnership, regardless of its business, if the Protected Products. The foregoing provisions shall not, however, prohibit the making securities of passive investments of five percent (5%) such corporation or less of the stock of any company partnership are listed for trading on a national securities stock exchange or are traded in the over-the-counter market;market and the holdings of any Seller or any of their respective members and Affiliates therein represent less than 5% of the total number of shares or principal amount of other securities of such corporation or partnership outstanding.
(b) Each For a period beginning on the Commencement Date until the date which is twenty-four (24) months after the Commencement Date, each Seller will not, and will cause its respective directors, officers, employees, members and Affiliates not to, without the written consent of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retainBuyer, directly or indirectly, for its own account or on behalf of any Person other Person, (i) hire any person who is (or during the twelve (12) months prior thereto was) employed as then an employee by the of Buyer or any of its Affiliates;
Affiliates (B) influence including BERMASE), or induce or attempt to influence induce any employee to leave his or her employment with Buyer or any of its Affiliates (including BERMASE); or (ii) cause, induce or encourage any material actual or prospective client, customer, supplier or licensor of the businesses of Buyer or BERMASE, as presently conducted or presently proposed to be conducted, (including any existing or former customer of BERMASE, Buyer or any Person that becomes a supplier client or customer of the business of Buyer or its Affiliates, BERMASE after the Closing) or any other Person who has a material business relationship with whom the business of Buyer or its Affiliates shall have dealtBERMASE, to terminate or modify any written such actual or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Productsprospective relationship.
(c) Except as The Parties hereto agree that, if any court of competent jurisdiction determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 5.3 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be required in enforced against the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereofapplicable party.
Appears in 1 contract
Sources: Equity Contribution Agreement (Global Pari-Mutuel Services, Inc.)
Non-Competition; Non-Solicitation. (a) The For a period of four (4) years following the Closing, no Seller shall, and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value of the Assetseach such Seller shall cause its Affiliates not to, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for engage, directly or indirectly, through any Person or contractual arrangement, in any business anywhere in the world that engages in the Business or that otherwise competes with the Target Companies (a period commencing on “Competitive Enterprise”), or (ii) directly or indirectly, through any Person or contractual arrangement, own, manage, operate, join, control, render financial assistance to, receive any economic benefit from, exert any influence upon or participate in or allow any of its officers or employees to be connected as an officer, employee, partner, member, consultant or otherwise with, any Competitive Enterprise; provided, that, nothing in this Section 5.4 shall prohibit either the Closing Date and expiring on the first to occur of (A) a breach by Toymax Sellers or the Buyer of any of their material obligations Affiliates from engaging in the business of owning and renting time shares and condominium hotels or vacation rental properties and the management of such businesses or apply to any prospective purchaser upon any Change of Control; provided, further that, nothing set forth in this Section 5.4 shall prohibit the Sellers or their Affiliates from (i) acquiring the assets or Capital Stock or other equity interests of any other Person engaged in any portion of the Business if less than 25% of the assets or sales of such Person as reflected in its most recent financial statements relate to the Seller or ▇'▇▇▇▇▇▇ under Business at any time up to and including the fourth anniversary of the Transaction DocumentsClosing, which breach is not cured within sixty (60) days as certified to by the Sellers in a certificate signed by the chief financial officer of the Sellers and provided to the Purchaser at the end of each fiscal year of the Sellers after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date until the fourth anniversary of the Closing, setting forth the percentage of assets or two (2) years from sales related to the date Business of any Person in which the Management Services Agreement is terminated (such period shall be referred to as Sellers acquire an equity interest after the "FIRST COVENANT PERIOD")Closing, they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for owning an interest acquired as a creditor in bankruptcy or otherwise than by a voluntary investment decision.
(b) For a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from following the Closing Date Closing, no Seller shall, and each Seller shall cause its Affiliates not to, solicit, recruit or one (1) year from hire any person who at any time on or after the date the Management Services of this Agreement is terminated (such period shall be referred to as an IHR Management Employee, provided, however, that the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys foregoing shall not prohibit (i) a general solicitation to the public of general advertising or similar methods of solicitation by search firms not specifically directed at an IHR Management Employee or (ii) the Sellers or any of their Affiliates from soliciting, recruiting or hiring any IHR Management Employee who has ceased to be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting employed or participating, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer), engaged in the business of marketing or selling retained by any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent Target Companies for at least eighteen (5%18) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Productsmonths.
(c) Except as may be required in the business For a period of the Buyer after two (2) years following the Closing, no Seller shall, and each Seller shall cause its Affiliates not to, solicit, recruit or hire any person who at any time on or after the Seller and ▇'▇▇▇▇▇▇ date of this Agreement is a Target Company Employee (other than the IHR Management Employees), provided, however, that the foregoing shall not at any time, directly or indirectly, use or purport prohibit (i) a general solicitation to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as public of general advertising or similar to those used currently methods of solicitation by search firms not specifically directed at Target Company Employees (other than the IHR Management Employees) or in (ii) the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer Sellers or any of their Subsidiaries Affiliates from soliciting, recruiting or Affiliates hiring any Target Company Employee (other than the IHR Management Employees) who has ceased to be employed or retained by any of the Target Companies for at least twelve (12) months.
(d) The covenants set forth in this Section 5.4 relate to matters which are of a special, unique and extraordinary character and are an essential element of this Agreement, and any violation by any Seller of any provision of this Section 5.4 will result in irreparable injury to the date hereofPurchaser. The Sellers acknowledge that in the event of such a breach, in addition to all other remedies available at law, the Purchaser shall be entitled to equitable relief, including injunctive relief, and an equitable accounting of all earnings, profits or other benefits arising therefrom, as well as such other damages as may be appropriate. Each Seller has independently consulted with its counsel and after such consultation agrees that the covenants set forth in this Section 5.4 are reasonable and proper to protect the legitimate interest of the Purchaser.
(e) If a court of competent jurisdiction determines that the character, duration or geographical scope of the provisions of this Section 5.4 are unreasonable, it is the intention and the agreement of the parties that these provisions shall be construed by the court in such a manner as to impose only those restrictions on any Seller’s conduct that are reasonable in light of the circumstances and as are necessary to assure to the Purchaser the benefits of this Agreement. If, in any judicial proceeding, a court shall refuse to enforce all of the separate covenants of this Section 5.4 because taken together they are more extensive than necessary to assure to the Purchaser the intended benefits of this Agreement, it is expressly understood and agreed by the parties that the provisions hereof that, if eliminated, would permit the remaining separate provisions to be enforced in such proceeding, shall be deemed eliminated, for the purposes of such proceeding, from this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Interstate Hotels & Resorts Inc)
Non-Competition; Non-Solicitation. (a) The 6.6.1 In consideration of the benefits of this Agreement to Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure induce Purchaser to enter into this Agreement, each of IMC Global and Seller, jointly and severally, hereby covenants and agrees that from and after the Buyer that Closing and until the Buyer will retain the value third anniversary of the AssetsClosing Date, the Seller it shall not, and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is shall cause its subsidiaries not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingto, directly or indirectly, as a partner, officerstockholder, employeedirector, consultant consultant, joint venturer, investor or otherwisein any other capacity, own engage in, or own, manage, operate or control, or participate in the ownership, management, operation or control of, any business or Personentity which engages anywhere in the United States of America in (x) the sale of crop production inputs and services at retail or (y) the sale of the crop production inputs set forth in Schedule 6.
6.1 at wholesale (a "Competing Business"); provided, however, that nothing herein shall prohibit IMC Global, Seller or any of their subsidiaries from (i) owning not more than 5.0% of any class of securities of a publicly traded entity in a Competing Business, (ii) acquiring and following such acquisition, actively engaging in, any business enterprise partially engaged in a Competing Business, so long as not more than 20% of the fair market value of such business, as determined in good faith by the Board of Directors of IMC Global and certified to Purchaser by an officer of IMC Global, is attributable to such Competing Business, (iii) acquiring, and following such acquisition, actively engaging in, any business enterprise partially engaged in a Competing Business, provided that if more than 20% of the fair market value of such business, as determined in good faith by the Board of Directors of IMC Global and certified to Purchaser by an officer of IMC Global, is attributable to such Competing Business, then such business shall divest itself of the subsidiary, division, group, franchise or segment which engages in such Competing Business as soon as practicable after the date of such acquisition, and provided, further, that with respect to any purchase intended to be accounted for as a pooling of interests under GAAP or treated for federal income tax purposes as a tax-free reorganization, no such divestiture shall be required until, in the reasonable opinion of the acquiror, such divestiture would no longer endanger the accounting of such acquisition as a pooling of interests under GAAP or the treatment for federal income tax purposes of such acquisition as a tax-free reorganization, or otherwise become (iv) engaging in any activity or be interested inservices of the type currently being performed by IMC Global, or associate with or render assistance to any Person Seller and their Affiliates (other than any Company Member).
6.6.2 From the Buyer), engaged in date hereof until the business of marketing or selling any third anniversary of the Protected Products. The foregoing provisions Closing Date, each of IMC Global and Seller, jointly and severally, shall not, howeverand shall cause its subsidiaries and representatives not to, prohibit the making without prior written approval of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retainPurchaser, directly or indirectly, solicit for employment any Person who is (current officer, senior manager, general manager, sales or during the twelve (12) months prior thereto was) employed as an technical employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its AffiliatesCompany; provided, or any other Person with whom however, that the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Products.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ foregoing shall not at any timeprevent IMC Global, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries Affiliates from hiring any such person (i) who contacts the IMC Global, Seller or their Affiliates on his or her own initiative without solicitation from any of IMC Global, Seller or their Affiliates, (ii) in connection with general employment advertisements published in magazines, journals, newspapers and other publications that are not targeted at the date hereofCompany or any of the Company's employees or (iii) who has been discharged by the Company prior to any such solicitation.
Appears in 1 contract
Sources: Stock Purchase Agreement (Royster-Clark Nitrogen Realty LLC)
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure For the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from commencing on the Closing Date neither the Company nor any of its Affiliates shall directly or indirectly (i) engage in public charter airline business in competition with Purchaser using the same gateways as those used by the Company as of the Closing Date or one (1ii) year from have an ownership interest in, any person, firm, corporation, association or other enterprise that is directly or indirectly engaged in conducting public charter operations using the date same gateways used by the Management Services Agreement is terminated (such period shall be referred to Company as of the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats Closing Date (the "SECOND PROTECTED PRODUCTSRestricted Activity") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participating, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not; provided, however, that nothing contained in this Section 6.7 shall prohibit the making Company or any of passive investments of five its Affiliates from owning, in the aggregate, (x) three percent (53%) or less of the any class of capital stock or other equity interest of any company engaged in any Restricted Activity that has securities listed on a national or regional securities exchange or traded in the over-the-counter market;market or (y) one percent (1%) or less of any class of capital stock or other equity interest of any other business enterprise engaged in any Restricted Activity. For purposes of clarification, "using the same gateways" shall mean flying a route which has the same departure and destination cities as those of a route flown by Vacation Express. For example, the Company or its Affiliates cannot fly a route which has a Vacation Express departure city to a Vacation Express destination city. But, the Company or its Affiliates may fly a route from a Vacation Express departure city to a non-Vacation Express destination city, or from a non-Vacation Express departure city to a Vacation Express destination city, and not be in violation of this Section 6.7 In addition, the parties agree that upon the consummation of the acquisition of an online travel consolidator by the Company or any of its Affiliates, the Company and its Affiliates may sell scheduled airline service on Vacation Express' gateways, as long as Vacation Express flights receive preferential display on the Worldspan booking/distribution system or on a different global distribution system. In no event shall the Company or any of its Affiliates be permitted to work with any other charter company with respect to the provision of airline services/vacation packages using the same gateways as those used by Vacation Express without violation of this Section 6.7. In connection with the foregoing, (i) Purchaser hereby represents that the limitations set forth herein are reasonable and are properly required for the adequate protection of the Business and (ii) the Company hereby acknowledges and agrees to the foregoing.
(b) Each For the period of three (3) years commencing on the Seller and ▇'▇▇▇▇▇▇ and their respective Closing Date neither the Company nor any of its Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not shall directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence indirectly induce or attempt to influence induce any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment Hired Employee or other professional relationship with employee of a Purchaser to leave the Buyer and/or its Affiliatesemploy of such Purchaser, or employ, consult or otherwise retain, directly or indirectly, in any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise way interfere with the Buyer's relationships with relationship between such parties in Purchaser and any way; or
(C) influence Hired Employee or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Productsemployee thereof.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past The Company agrees that Purchaser would suffer irreparable harm from a breach by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer Company or any of its Subsidiaries Affiliates of any of the covenants or Affiliatesagreements contained in this Section 6.7. As used herein, In the phrase "competitive business" means any business competitive with the type event of business engaged in an alleged or threatened breach by the Seller, the Buyer Company or any of their Subsidiaries its Affiliates of any of the provisions of this Section 6.7, Purchaser or its Affiliates at or assigns may, in addition to all other rights and remedies existing in its favor, apply to any court of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any violations of the date provisions hereof. To the extent of any breach of this Section 6.7 by the Company or any of its Affiliates, the noncompete period for the Company or any of its Affiliates shall automatically be extended by the length of such breach.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ Parties each hereby acknowledge that in order to assure the Buyer that the Buyer will retain invest substantial time, money and resources in acquiring the Business, as well as in the development and retention of the Company's inventions, confidential information, customers, accounts and business partners. Therefore, each Seller Party hereby agrees that, if allowed to participate in a competitive business or solicit any Company's customers and suppliers in violation of this Section 6.07, such Seller Party would substantially impair the value of the Assets, the Purchased Assets being acquired by Buyer. Each Seller and ▇'▇▇▇▇▇▇ agree that:
(i) Party agrees that for a five-year period commencing on following the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIODRestricted Period"), they will such Seller Party shall not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇capacity, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete in association with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingothers, directly or indirectly, as a advisor, agent, owner, partner, officerequity holder, employeebeneficial owner or in any other capacity:
(i) engage in the Business or in any business activity that in any manner whatsoever competes with the Business, consultant in each case as the Business is being conducted as of the Closing (the "Competitive Activities") in the Territory;
(ii) own any interest in, manage, operate, join or otherwise, own or operate control any business or Personorganization that engages in a Competitive Activity, or otherwise become or provided that a Seller Party shall not be interested inprohibited from being a passive owner of not more than 5% of the outstanding stock of any class of a corporation, or associate with or render assistance to any Person (other than the Buyer)securities of which are publicly traded, engaged so long as such Seller Party has no active participation in the business of marketing such corporation; or
(iii) solicit or selling entice any customer or supplier of Buyer or an Affiliate of Buyer (including any customer or supplier after the Closing) to cease doing business with or reduce its relationship with any of Buyer or its Affiliates (including any customer or supplier after the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;Closing).
(b) Each of During the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Restricted Period, as the case may beno Seller Party shall, for and shall not permit any of its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retainAffiliates to, directly or indirectly, hire or solicit any Person person who is (offered employment by Buyer pursuant to Section 6.05(a) or is or was employed in the Business during the twelve Restricted Period or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided, that nothing in this Section 6.07(b) shall prevent a Seller Party or any of its Affiliates from hiring (12i) months prior thereto wasany employee whose employment has been terminated by Buyer or (ii) employed as an after 180 days from the date of termination of employment, any employee whose employment has been terminated by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Productsemployee.
(c) Except as Each Seller Party acknowledges that a breach or threatened breach of this Section 6.07 would give rise to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by such Seller Party of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be required 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 (without any requirement to post bond).
(d) Each Seller Party acknowledges that the business restrictions contained in this Section 6.07 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 Buyer after transactions contemplated by this Agreement. In the Closingevent that any covenant contained in this Section 6.07 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 Seller maximum time, geographic, product or service or other limitations permitted by applicable Law. The covenants contained in this Section 6.07 and ▇'▇▇▇▇▇▇ each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not at invalidate or render unenforceable the remaining covenants or provisions hereof, and any time, directly such invalidity or indirectly, use unenforceability in any jurisdiction shall not invalidate or purport to authorize render unenforceable such covenant or provision in any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereofjurisdiction.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The For a period of three years from the Closing Date, Seller agrees that, without the prior written consent of Buyer, it will not, and ▇'▇▇▇▇▇▇ acknowledge that will cause its Subsidiaries not to, provide technical, professional and mission support services involving (w) military pre-positioning operations, total package fielding and automated fuel handling, (x) ground-based space mission services, (y) physical and cyber security for facilities of U.S. Government Agencies, or (z) the MSA Services, in order to assure each case, in competition with the Buyer that the Buyer will retain the value business of the AssetsCompany as conducted on the Closing Date (a “Competing Business”); provided, the however, that nothing in this Section 6.07(a) shall be deemed to limit in any way or preclude Seller and ▇'▇▇▇▇▇▇ agree thator any of its Subsidiaries from:
(i) for a period commencing on engaging in any activity (other than the Business) not conducted by the Company as of the Closing Date Date;
(ii) engaging in any activity for customers other than U.S. Government Agencies conducted by Seller or any Subsidiary of Seller (other than the Company) as of the Closing Date;
(iii) providing any services, other than MSA Services, to Seller or any Subsidiary of Seller; provided that Seller and expiring on any Subsidiary of Seller may provide MSA Services to Seller or any Subsidiary of Seller in the first event Seller provides notice of breach to occur the Company pursuant to the terms of the MSA;
(Aiv) a breach by Toymax acquiring any Person or business that engages in any Competing Business; provided that (A)(1) the Buyer engagement in such Competing Business does not constitute more than 20% of the revenue of the Person or business to be acquired for the most recent fiscal year of any such Person or business and (2) such Competing Business produced revenues less than $500 million in the aggregate for the most recent fiscal year of their material obligations to the Seller such Person or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, business or (B) if the date which is Competing Business does constitute more than 20% of the later revenues of five the Person or business to be acquired or such Competing Business produced revenues in excess of $500 million, Seller shall use its reasonable best efforts to divest that portion of such Person or business that engages in the Competing Business within twelve months after its acquisition of the Competing Business;
(5v) acquiring securities by any pension trust or similar employee benefit plan investment vehicle of Seller (or its Affiliate); provided that any securities acquired shall be held for investment purposes only and such benefit plans comply with ERISA requirements as to the independence of investment decisions;
(vi) exercising its rights or complying with its obligations under this Agreement or any of the Ancillary Agreements; or
(vii) without limiting the foregoing, researching and developing, designing, manufacturing, marketing, offering or selling any product, service or activity listed on Schedule 6.07(a).
(b) Notwithstanding anything to the contrary in this Agreement, the prohibitions in Section 6.07(a) shall not apply to any unaffiliated third party acquirer of Seller and such acquiror’s Affiliates after a change of control of Seller.
(c) For a period of three years from the Closing Date or two Date, (2i) years from the date the Management Services Agreement is terminated (such period Seller shall be referred to as the "FIRST COVENANT PERIOD")not, they will not compete with the Buyer and shall cause its Subsidiaries and Affiliates at not to, without the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur prior written consent of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingBuyer, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate solicit for employment any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
Transferred Employee; provided that (A) influence neither Seller nor its Subsidiaries will be deemed to have solicited any such Transferred Employee who responds to any general media advertisement or attempt job posting placed by or on behalf of Seller or any of its Subsidiaries, unless, solely to influence the extent prior to such response, Seller or its Subsidiaries otherwise solicited such Transferred Employee (including by specifically directing such Transferred Employee to such advertisement or posting) and (B) Seller or any Person of its Subsidiaries may solicit any such Transferred Employee whose employment has been involuntarily terminated by Buyer or its Subsidiaries not less than one year prior to any direct or indirect solicitation by Seller or any of its Subsidiaries; and (other than employees ii) Seller shall, and shall cause its Subsidiaries to, instruct all employment search firms engaged by Seller or any of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retainSubsidiaries not to, directly or indirectly, solicit for employment any Person who is (Transferred Employee; provided that Seller shall be deemed to not have solicited any Transferred Employee in violation of Section 6.07(c)(i) and to not have violated Section 6.07(c)(ii) if Seller does not, and causes its Subsidiaries not to, without the prior written consent of Buyer, hire or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the employ from Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course Transferred Employee solicited by such search firm in contravention of dealing with the Buyer Seller’s or its Affiliates, or Subsidiaries instructions pursuant to otherwise interfere with the Buyer's relationships with such parties in any way; orthis Section 6.07(c).
(Cd) influence or attempt to influence a supplier or customer of In the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling event that any of the Protected Products.
(c) Except as covenants contained in this Section 6.07 shall be determined by any court of competent jurisdiction to be unenforceable by reason of its extending for too long a period of time or over too large a geographical area or by reason of being too extensive in any other respect, the covenants contained in this Section 6.07 shall be interpreted to extend only over the longest period of time for which they may be required enforceable, and/or over the largest geographical area as to which they may be enforceable and/or to the maximum extent in the business of the Buyer after the Closingall other aspects as to which they may be enforceable, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same all as or similar to those used currently or determined by such court in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereofaction.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Seller In furtherance of the transactions contemplated hereby and more effectively to protect the value and goodwill of the assets and businesses of the Company, each of the Seller, ▇'▇▇▇▇ ▇▇▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ under any covenants and agrees that, for a period ending on the fifth anniversary of the Transaction DocumentsClosing Date, which breach is such Person shall not:
(i) directly or indirectly own, manage, operate, control, participate in, perform services for or otherwise carry on, a business competitive with the businesses conducted by the Company as of the Closing Date anywhere in the world (it being understood by the parties hereto that the businesses conducted by the Company are not cured within sixty limited to any particular region of the world and that the businesses conducted by the Company may be engaged in effectively from any location in the world); or
(60ii) days after notice thereof from directly or indirectly, either on such Person’s own behalf or on behalf of any other Person, induce or attempt to persuade any supplier or customer of the Seller Company to terminate or modify its business relationship with the Company; provided, however, that nothing set forth in Section 5.4(a) shall prohibit the Seller, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇'▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, respectively, from owning not in excess of 2% in the aggregate of any class of capital stock of any corporation if such stock is publicly traded and listed on any national or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); andregional stock exchange.
(iib) In furtherance of the transactions contemplated hereby and more effectively to protect the value and goodwill of the assets and businesses of the Company, each of the Seller and each Seller Member covenants and agrees, severally and not jointly, that, for a period commencing ending on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any fifth anniversary of the Transaction DocumentsClosing Date, which breach is not cured within sixty such Person (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in questionand, in connection with the following products: toy sprinklerscase of Riverside Fund III, water slides L.P., its affiliated funds, general partner and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS"management company) (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes hire any employee of this Section 5.7the Company prior to his or her termination by the Company, the term compete shall include acting or participatingor, directly or indirectly, as a partnersolicit, officer, employee, consultant induce or otherwise, own encourage any employee of the Company to terminate his or operate her employment with the Company or to accept employment with any business or other Person, or otherwise become cooperate with any others in doing or be interested inattempting to do so. As used herein, the term “solicit, induce or encourage” includes (i) initiating communications with an employee of the Company relating to possible employment, or associate (ii) offering bonuses or additional compensation to encourage any employee of the Company to terminate his or her employment with the Company and accept employment with any other Person.
(c) The parties acknowledge and agree that the restrictions contained in this Section 5.4 are reasonable (including as to scope, time and area), not unduly restrictive of Seller’s and the Seller Members’ rights, supported by adequate consideration and necessary protection of the immediate interests of Buyer, and any violation of these restrictions would cause immediate and irreparable injury to Buyer for which there would be no adequate monetary damages. In the event of a breach or render assistance a threatened breach by Seller or any Seller Member, such Person acknowledges and agrees that Buyer shall be entitled to an injunction restraining such Seller or Seller Member from such breach or threatened breach without the requirement of posting bond, in addition to any Person (other than remedy to which Buyer may be entitled at law or in equity. In addition, the Buyer)parties acknowledge and agree that the restrictions contained in this Section 5.4 are essential elements of this Agreement and that but for these restrictions, engaged in Buyer would not have agreed to enter into this Agreement and the business transactions contemplated hereby, and Seller and each Seller Member agrees not to challenge the validity or importance of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of such restrictions applicable to the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree thator such Member. If any court determines that any provision of this Section 5.4 is unenforceable, after giving effect such court will have the power to reduce the purchase duration or scope of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Periodsuch provision, as the case may be, for its or his own benefit or for terminate such provision until, in such reduced form, such provision shall be enforceable. It is the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees intention of the Seller providing consulting services parties hereto that the foregoing restrictions shall not be terminated, unless so terminated by a court, but shall be deemed amended to Buyer at the time extent required to render them valid and enforceable, such amendment to apply only with respect to the operation of Closing) to either terminate or modify such Person's employment or other professional relationship with this Section 5.4 in the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer jurisdiction of the Buyer or its Affiliates, or any other Person with whom court that has made the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Productsadjudication.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereof.
Appears in 1 contract
Sources: Securities Purchase Agreement
Non-Competition; Non-Solicitation. (a) The During the Restricted Period, Seller shall not, and ▇'▇▇▇▇▇▇ acknowledge shall not permit any of its Affiliates to, directly or indirectly (it being understood that in order commercial transactions with a client, customer, supplier, licensor or distributor that is not an Affiliate of Seller shall not be deemed to assure be indirectly violating the Buyer that the Buyer will retain the value provisions of this Section 6.08 by reason of the Assets, fact that such person may be engaging in the Seller and ▇'▇▇▇▇▇▇ agree that:Restricted Business or taking any other action prohibited hereunder):
(i) for a period commencing on engage in the Closing Date and expiring on Restricted Business in the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); andTerritory;
(ii) for a period commencing on have an interest in any Person that engages directly in the Closing Date and expiring on Restricted Business in the first to occur of (A) a breach by Toymax or the Buyer of Territory in any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documentscapacity, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participating, directly or indirectly, including as a partner, officershareholder, employeemember, consultant principal, agent, trustee or otherwiseconsultant; or
(iii) cause, own induce or operate encourage any business client, customer, supplier or Person, or otherwise become or be interested in, or associate with or render assistance to licensor of the Business (including any Person (other than the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on that becomes a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier client or customer of the Buyer or its AffiliatesBusiness after the Closing), or any other Person who has a material business relationship with whom the Buyer or its Affiliates shall have dealtBusiness, to terminate or modify any written such actual or oral agreement prospective relationship in a manner that is adverse to the Business.
(b) The restrictions in Section 6.08(a) shall not apply to:
(i) The Specified Excluded Businesses, or course any business conducted or investment held by Seller or its Affiliates (other than the Business), or contemplated by an existing contractual arrangement applicable to Seller or any of dealing its Affiliates (other than the Business) as of the date of this Agreement and disclosed on Schedule 6.08(b), which Schedule will be provided within 15 Business Days after the date hereof and which, to the Knowledge of Seller as of the date hereof, would not reasonably be expected to disclose businesses, investments or arrangements that would be significant in light of the intended purpose of this Section 6.08;
(ii) any equity investment (including equity derivatives) in a Person in which Seller and its Affiliates (A) do not have the right to designate greater than 20% of the board of directors (or similar governing body) of such Person, (B) hold less than 25% of the total voting power of the outstanding voting securities or similar equity interests, (C) do not manage or operate the business of such Person or make significant proprietary assets available to such Person for use in such Person’s business other than on arm’s length commercial terms and (D) are not entitled to ordinary dividend income or other distributions that are greater than the product of (x) 1.5 and (y) what a Person who is the holder of ordinary voting securities or similar equity interests with a total voting power equal to the total voting power of the outstanding voting securities or similar equity interests held by Seller and its Affiliates would receive;
(iii) any business activity that would otherwise violate Section 6.08(a) that is acquired in connection with an Acquisition so long as (A) the net sales derived from the conduct of the Restricted Business constitute less than 20% of the net sales of the Acquired Business and such annual net sales derived from the conduct of the Restricted Business are less than $80 million; or (B) Seller or its Affiliates, as applicable, divests all or substantially all of the business activity that would otherwise violate Section 6.08(a) or otherwise terminates or disposes of such business activity, product lines or assets of such Acquired Business that would otherwise violate Section 6.08(a) within one year after the consummation of the acquisition of such Acquisition or such longer period as may reasonably be necessary to comply with any applicable Laws; provided, however, that Seller or any of its Affiliates may not under any circumstances acquire an Acquired Business with respect to which the portion of the business activity that is prohibited by Section 6.08(a) (x) constitutes 30% or more of the total annual net sales of such Acquired Business unless the total annual net sales of the Acquired Business are less than $100 million, or (y) generates annual net sales in excess of $120 million;
(iv) passive investments by a pension or employee benefit plan or trust for present or former employees so long as such investments are directed by independent trustees, administrators or employees or by virtue of any other similar plan, fund or investment vehicle over which Seller and its Affiliates exercise no investment discretion (other than the right to buy or sell its interest in such plan, fund or investment vehicle) and financial investments by the Novartis Venture Funds;
(v) investments by the Novartis Foundation for Sustainable Development or a similar non-profit-based organization;
(vi) performance of any obligation of Seller or an Affiliate of Seller under the Transaction Documents, as amended from time to time in accordance with its their terms; or
(vii) provision of data or other content to or in connection with a Restricted Business conducted by any Person other than Seller or an Affiliate of Seller, in each case as required by applicable Law.
(c) Section 6.08(a) shall (x) cease to be applicable to any Person at such time as it is no longer an Affiliate of Seller and shall not apply to any Person that purchases assets, operations, a subsidiary or a business from Seller or one of its Affiliates, if such Person is not an Affiliate of Seller after such transaction is consummated, and (y) be inapplicable to any Affiliate of Seller in which a Person who is not an Affiliate of Seller holds equity interests and with respect to whom Seller or another Affiliate, as applicable, has existing contractual or legal obligations limiting Seller’s discretion to impose on the subject Affiliate a non-competition obligation such as that in Section 6.08(a) and to be set forth on Schedule 6.08(c) (which Schedule will be provided within 15 days after the date hereof and which, to the Knowledge of Seller as of the date hereof, would not reasonably be expected to contain equity interests that would be significant in light of the intended purposes of this Section 6.08).
(d) During the Restricted Period, Seller shall not, and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any person who is offered employment by Buyer or its Affiliates pursuant to Section 6.05 and is or was a Senior Employee during the Restricted Period or whose total annual compensation is in excess of $150,000, or encourage any such employee to leave such employment or hire any such employee who has left such employment, except pursuant to a general solicitation that is not directed specifically to any such employee; provided that nothing in this Section 6.08(d) shall prevent Seller or any of its Affiliates from (i) hiring or soliciting any employee whose employment with Buyer or any of its Affiliates was terminated by Buyer or (ii) hiring or soliciting any employee whose employment with Buyer or any of its Affiliates has been terminated by the employee, after 180 days from the date of termination of such employment.
(e) Seller acknowledges that a breach or threatened breach of this Section 6.08 would give rise to irreparable harm to Buyer or its Affiliates, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or to otherwise interfere with the Buyer's relationships with such parties in a threatened breach by Seller of any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliatesobligations, or any other Person with whom the Buyer or its Affiliates shall have dealtmay, for the purpose in addition to any and all other rights and remedies that may be available to it in respect of offering or selling 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 the Protected Productscompetent jurisdiction (without any requirement to post bond).
(cf) Except Seller acknowledges that the restrictions contained in this Section 6.08 are reasonable and necessary to protect the legitimate interests of Buyer and its Affiliates and constitute a material inducement to Buyer to enter into this Agreement and the other Transaction Documents and consummate the transactions contemplated by this Agreement and the other Transaction Documents. In the event that any covenant contained in this Section 6.08 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 6.08 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as may be required in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ written shall not at invalidate or render unenforceable the remaining covenants or provisions hereof, and any time, directly such invalidity or indirectly, use unenforceability in any jurisdiction shall not invalidate or purport to authorize render unenforceable such covenant or provision in any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereofjurisdiction.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Seller As a condition precedent to Purchaser's --------------------------------- obligation to enter into and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value perform its obligations under this Agreement, Seller, on behalf of the Assetsitself and its affiliates, the Seller and ▇'▇▇▇▇▇▇ agree agrees that:
(ia) for For a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from after the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIODNon- --- Competition Period"), they will not compete except for ownership of the Note and except with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first respect ------------------ to occur of (A) a breach technology developed by Toymax Seller or the Buyer of any of their material obligations to its affiliates in conjunction with other lines of business, neither Seller nor its affiliates shall, directly or indirectly, either for itself or for any other person, "participate" anywhere in the Seller world in the Contact Lens Products Business or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Productsextension thereof. For purposes of this Section 5.7Agreement, the term compete shall include acting "participate" includes any direct or participatingindirect interest in any enterprise, directly or indirectlywhether as an officer, as a partner, officerdirector, employee, consultant partner, sole proprietor, agent, representative, independent contractor, consultant, franchisor, franchisee, creditor, owner or otherwise; provided, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other that the term "participate" shall not include ownership of less than the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less 2% of the stock of any company listed a publicly-held corporation whose stock is traded on a national securities exchange or traded in the over-the-counter market;. Notwithstanding the above, nothing herein shall prohibit, prevent, or restrict any of Seller or its affiliates from acquiring any company or business the acquisition of which would (but for the provisions of this sentence) be prohibited under the provisions of this Section ------- 6.11
(ba) Each (prohibited activities of any such acquired company or business being ------- referred to as the "contact lens business activities"), where the turnover of such contact lens business activities constitutes less than fifty percent (50%) of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase aggregate turnover of the Assets at the Closingcompany, it business, or he will not directly group of companies or indirectly, during the First Covenant Period and Second Covenant Period, businesses acquired (as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees as part of the same transaction or series of related transactions. In the event that Seller providing consulting services to Buyer at the time or any of Closing) to either terminate its affiliates should acquire any such company or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or business during the Non- Competition Period pursuant to the immediately preceding sentence, Seller agrees to dispose or cause such affiliate to dispose of the contact lens business activities of such company or business within twelve (12) months from the date of consummation of such transaction and to provide Purchaser with a right of first offer to purchase such contact lens business activities. Seller will notify Purchaser in writing of the acquisition of any such contact lens business activities (the "Purchase Notice") within thirty (30) days after the date of such acquisition, and if Purchaser gives written notice of its interest in acquiring such contact lens business activities (the "Interest Notice") within thirty (30) days of the receipt of the Purchase Notice, Seller agrees to negotiate in good faith with Purchaser for the purchase by Purchaser of such business. If, after sixty (60) days from the date of Seller's receipt of the Interest Notice, Seller and Purchaser have been unable to agree on terms for the purchase by Purchaser of the contact lens business activities, or if, prior thereto was) employed as an employee by to such date, Purchaser shall have advised Seller that Purchaser has determined not to further pursue the Buyer acquisition of such business, then Seller may sell such contact lens business activities to any other person or entity on terms not less favorable to Seller or its Affiliates;affiliates than those offered in writing by Purchaser during negotiations contemplated herein.
(Bb) influence During the Non-Competition Period, Seller will not, and will not permit its affiliates to, divulge or attempt appropriate for their own use, or for the use of any third party, any secret or confidential information or knowledge obtained by Seller or any of its affiliates concerning the Contact Lens Products Business. This obligation of secrecy shall not apply to influence a supplier information which (i) is or customer becomes part of the Buyer public domain other than through breach of this Agreement or through the fault of Seller or any of its affiliates, (ii) is or becomes available to Seller or its Affiliatesaffiliates from an unaffiliated source, which source has no obligation of secrecy to Purchaser or its affiliates, (iii) is required to be disclosed by law or government order (but only to the extent so required), or (iv) is used by Seller or any of its affiliates in any other Person with whom lines of business, provided that the Buyer exception in this subclause (iv) shall not apply to information that is divulged by Seller or its Affiliates shall have dealt, affiliates to terminate or modify any written or oral agreement or course of dealing with third party specifically for its use in the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties Business Field (as defined in any way; or
(CSection 6.11(f) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Products--------------- below).
(c) Except as may During the two-year period following the Closing Date, neither Seller nor its affiliates will solicit the employment (in any capacity of, or, to the extent not otherwise prohibited by law, hire any Employee without the prior written consent of Purchaser.
(d) If, at the time of enforcement of this Section 6.11, a court holds ------------ that the duration, scope, geographic area or other restrictions stated herein are unreasonable under circumstances then existing, the parties agree that the maximum duration, scope, geographic area or other restrictions deemed reasonable under such circumstances by such court shall be required substituted for the stated duration, scope, geographic area or other restrictions.
(e) Seller, on behalf of itself and its affiliates, recognizes and affirms that in the business event of breach of any of the Buyer after provisions of this Section ------- 6.11, money damages would be inadequate and Purchaser and its affiliates would ---- have no adequate remedy at law. Accordingly, Seller, on behalf of itself and its affiliates, agrees that Purchaser and its affiliates shall have the Closingright, in addition to any other rights and remedies existing in their favor, to enforce their rights and Seller's obligations under this Section 6.11 not only by an ------------ action or actions for damages, but also by an action or actions for specific performance, injunctive and/or other equitable relief in order to enforce or prevent any violations (whether anticipatory, continuing or future) of the provisions of this Section 6.11 (including, without limitation, the extension of ------------ the Non-Competition Period by a period equal to (i) the length of the violation of this Section 6.11 plus (ii) the length of any court ------------ proceedings necessary to stop such violation). In the event of a breach or violation by Seller of any of the provisions of this Section 6.11, the running ------------ of the Non-Competition Period (but not of Seller's obligations under this Section 6.11) shall be tolled with respect to Seller during the continuance of ------------ any actual breach or violation.
(f) During the two-year period following the Closing Date, Seller will, and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectlywill cause its affiliates to, use reasonable best efforts to notify Purchaser in writing of any proposed licensing of IP Rights by Seller or purport any of its affiliates to authorize any Person to other person or entity engaged in the Business Field, for use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are of the same as or similar to those used currently or in the past Business Field. In such event, Seller will negotiate in good faith with Purchaser for the non-exclusive licensing of such IP Rights on terms mutually agreeable to Purchaser and Seller. As used in this Section ------- 6.11(f), "IP Rights" means all invention registrations, patents, patent ------- registrations and patent applications and all rights therein provided by the Seller uniquely in connection with the Funnoodle Product Linelaw and all technical information, including without limitation (i) inventions, whether or not such use would be in patentable, whether or not reduced to practice, and whether or not yet made the subject of a business competitive with that pending patent application or applications, (ii) ideas and conceptions of potentially patentable subject matter, including without limitation, any patent disclosures, whether or not reduced to practice and whether or not yet made the Buyer subject of a patent application, (iii) trade secrets and confidential, technical information (including without limitation, ideas, formulae, compositions, inventions, and conceptions of inventions whether patentable or any of its Subsidiaries unpatentable and whether or Affiliatesnot yet reduced to practice), and (iv) technology, manufacturing and production processes and techniques, research and development information, drawings, specifications, designs, plans, proposals, technical data, whether secret or confidential or not. As used herein, the phrase "competitive businessBusiness Field" means any business competitive with the type worldwide research, development, manufacture, distribution and sale of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereofcontact lenses.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Wesley Jessen Holding Inc)
Non-Competition; Non-Solicitation. Executive and Company agree to the non-competition and non-solicitation provisions of this Article VIII (i) as part of the consideration for the compensation and benefits to be paid to Executive hereunder, (ii) to protect the trade secrets and confidential information of Company or its affiliates disclosed or entrusted to Executive by Company or its affiliates or created or developed by Executive for Company or its affiliates, the business goodwill of Company or its affiliates developed through the efforts of Executive and/or the business opportunities disclosed or entrusted to Executive by Company or its affiliates and (iii) as an additional incentive for Company to enter into this Agreement.
(a) The Seller Subject to the exceptions set forth in section 8.2(b) below, Executive expressly covenants and ▇'▇▇▇▇▇▇ acknowledge agrees that in order to assure during the Buyer that the Buyer will retain the value of the AssetsProhibited Period, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing he will refrain from carrying on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingengaging in, directly or indirectly, as a partnerany Competing Business in the Restricted Area and (ii) he will not, officerand he will cause his affiliates not to, employeedirectly or indirectly, consultant own, manage, operate, join, become an employee of, control or otherwise, own or operate any business or Person, or otherwise become participate in or be interested in, or associate connected with or render assistance loan money to, sell or lease equipment to or sell or lease real property to any Person business, individual, partnership, firm, corporation or other entity which engages in a Competing Business in the Restricted Area.
(other than b) Notwithstanding the Buyerrestrictions contained in Section 8.2(a), engaged in the business of marketing Executive or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making his affiliates may own an aggregate of passive investments of five percent (5%) or less not more than 2.5% of the outstanding stock of any company class of any corporation engaged in a Competing Business, if such stock is listed on a national securities exchange or regularly traded in the over-the-counter market;market by a member of a national securities exchange, without violating the provisions of Section 8.2(a), provided that neither Executive nor any of his affiliates has the power, directly or indirectly, to control or direct the management or affairs of any such corporation and is not involved in the management of such corporation.
(bc) Each Executive further expressly covenants and agrees that during the Prohibited Period, he will not, and he will cause his affiliates not to (i) engage or employ, or solicit or contact with a view to the engagement or employment of, any person who is an officer or employee of Company, IPS, I.E. M▇▇▇▇▇ or any of their respective affiliates or (ii) canvass, solicit, approach or entice away or cause to be canvassed, solicited, approached or enticed away from Company, IPS, I.E. M▇▇▇▇▇ or any of their respective subsidiaries any person who or which is a customer of any of such entities during the Seller and ▇'▇period during which Executive is employed by Company. Notwithstanding the foregoing, the restrictions of clause (i) of this Section 8.2(c) shall not apply with respect to (A) an officer or employee whose employment has been involuntarily terminated by his or her employer (other than for cause), (B) an officer or employee who has voluntarily terminated employment with Company, IPS, I.E. M▇▇▇▇▇ and their respective Affiliates agree thataffiliates and who has not been employed by any of such entities for at least one year, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliatesan employee who is paid on an hourly basis, or any other Person with whom the Buyer (D) an officer or its Affiliates shall have dealtemployee who responds to a general solicitation that is not specifically directed at officers and employees of Company, for the purpose of offering or selling any of the Protected Products.
(c) Except as may be required in the business of the Buyer after the ClosingIPS, the Seller and ▇'▇I.E. M▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereofrespective affiliates.
Appears in 1 contract
Sources: Employment Agreement (Complete Production Services, Inc.)
Non-Competition; Non-Solicitation. (a) The Seller Sellers understand that Buyer shall be entitled to protect and ▇'▇▇▇▇▇▇ acknowledge that in order to assure preserve the Buyer that the Buyer will retain the going concern value of the Assets, Business and the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations Company to the Seller or ▇'▇▇▇▇▇▇ under any of extent permitted by applicable Law and that Buyer would not have entered into this Agreement absent the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes provisions of this Section 5.7, the term compete shall include acting or participating, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;4.5.
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree agrees that, after giving effect to during the purchase of three-year period immediately following the Assets at the ClosingClosing Date, it or he will not, and will cause each of its current and future Affiliates not to, engage (directly or indirectly), during alone or in association with another Person, control, operate, manage or have any ownership interest in any business located anywhere in the First Covenant Period and Second Covenant PeriodUnited States that competes with the Business; provided, as however, that no owner of less than 5% of the case may be, for its or his own benefit or for the benefit outstanding stock of any other Person:
(A) influence publicly traded corporation shall be deemed to engage or attempt to influence any Person (other than employees participate in such publicly traded corporation’s business solely by reason of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Productsinvestment.
(c) Except as may be required in Each Seller agrees that during the business three-year period immediately following the Closing it will not, and will cause each of the Buyer after the Closing, the Seller its current and ▇'▇▇▇▇▇▇ shall future Affiliates not at any time, to (directly or indirectly): (i) hire, use engage or purport recruit, solicit or otherwise attempt to authorize employ or engage or enter into any business relationship with any Person employed by the Company, or induce or attempt to use induce any namesuch Person to leave such employment, ▇▇▇▇or (ii) intentionally interfere with the relationship between the Company and any of the Company’s current customers, logoservicing carriers, trade dress sub-producers or other identifying words or images which are the same as or similar to those used currently or business associates engaged in the past Business, or intentionally induce, solicit or otherwise cause to terminate, non-renew or reduce premiums written by any such customers, servicing carriers, sub-producers or other business associates; provided, however, that in the case of clause (i) of this subsection, (x) placing a general advertisement of employment will not be deemed a breach of this Section 4.5(c) and (y) any Seller or its Affiliate may hire a former employee of the Company after such former employee has ceased to be employed by the Seller uniquely Company in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that operation of the Business for a period of at least six months.
(d) Sellers, on behalf of themselves and their respective Affiliates, agree that irreparable damage would occur in the case of any breach of the covenants contained in this Section 4.5, and, accordingly, that Buyer shall be entitled to seek injunctive or other equitable relief, including the remedy of specific performance, to prevent any breach of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereofthis Section 4.5.
Appears in 1 contract
Sources: Stock Purchase Agreement (Kingsway Financial Services Inc)
Non-Competition; Non-Solicitation. (a) The Seller Except as expressly provided in this Agreement or any Ancillary Agreement or with the prior written consent of Buyer, Sellers shall not, and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value shall cause each of the Assetstheir Controlled Affiliates not to, the Seller and ▇'▇▇▇▇▇▇ agree thatdirectly or indirectly:
(i) for a period commencing on of three (3) years from and after the Closing Date Date, directly or indirectly as a stockholder, investor, member, partner or otherwise, own, manage, operate or engage in any business that performs MRO services that compete with the Business (for the avoidance of doubt, as carried on by Sellers (directly or indirectly through their Controlled Affiliates, including the Transferred Subsidiaries) as of the date hereof and expiring on as of immediately prior to the first Closing) in any jurisdiction in the world in which the Business sells or provides services as of the date hereof, as of immediately prior to occur the Closing or for the twelve months immediately prior to the Closing (the “Competing Activity”); provided that, this Section 4.18(a)(i) shall not be deemed breached as a result of (A) a breach Sellers or their Controlled Affiliates performing any act expressly contemplated by Toymax this Agreement or any Ancillary Agreement or with the Buyer prior written consent of Buyer; (B) Sellers or their Controlled Affiliates performing MRO services on any of their material obligations to the products that any such Seller or ▇'▇▇▇▇▇▇ under Controlled Affiliate designed, developed or manufactured; (C) Sellers or their Controlled Affiliates performing MRO services on any of the Transaction Documents, which breach is not cured within sixty (60products set forth on Section 9.1(a) days after notice thereof from of the Seller and ▇'▇▇▇▇▇▇, Disclosure Letter; or (BD) the date which is acquisition or ownership, directly or indirectly, by Sellers or their Controlled Affiliates of (x) the later equity securities of five (5) years from any Person that engages in the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer Competing Activity if Seller and its Subsidiaries and Affiliates at Controlled Affiliates, directly or indirectly, do not own in aggregate more than 10% of the time outstanding equity securities of such Person or (y) any Person that engages in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats Competing Activity if the Competing Activity accounts for 20% or less of the consolidated annual revenues of such Person (the "FIRST PROTECTED PRODUCTS"based on such Person’s latest annual financial statements); andor
(ii) for a period commencing on of two (2) years from and after the Closing Date and expiring on the first to occur Date, solicit for employment or hire any Transferred Business Employee; provided, that this Section 4.18(a)(i) shall not preclude Sellers or any of their Controlled Affiliates from (A) soliciting for employment any Transferred Business Employee who responds to a breach general solicitation through a public medium or general or mass mailing by Toymax or the Buyer on behalf of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach Sellers that is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇targeted at Transferred Business Employees, or hiring any non-management Transferred Business Employee that responds to any such general solicitation, or (B) the date which is the later hiring any Transferred Business Employee whose employment has been terminated by Buyer or its Controlled Affiliates prior to commencement of three solicitation by Sellers or their Controlled Affiliates or employment discussions between Sellers or their Controlled Affiliates and such individual.
(3b) years from the Closing Date Except as expressly provided in this Agreement or one (1) year from the date the Management Services any Ancillary Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete or with the prior written consent of Sellers, Buyer shall not, and shall cause each of its Subsidiaries and Controlled Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingto, directly or indirectly, as to the extent permitted by applicable Law, for a partnerperiod of two (2) years from and after the Closing Date, officer, employee, consultant solicit for employment or otherwise, own hire any employees of Sellers or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%their Affiliates set forth on Section 4.18(b) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree thatDisclosure Letter; provided, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(Athat this Section 4.18(b) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Products.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the preclude Buyer or any of its Subsidiaries Controlled Affiliates from (i) soliciting for employment any employee of Sellers or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type their Affiliates who responds to a general solicitation through a public medium or general or mass mailing by or on behalf of business engaged in by the Seller, the Buyer or its Controlled Affiliates that is not targeted at such employees of Sellers or their Affiliates or (ii) soliciting for employment or hiring any employee of Sellers or their Subsidiaries Affiliates whose employment has been terminated by Sellers or their Controlled Affiliates at the date hereofprior to commencement of solicitation by Buyer or its Controlled Affiliates or employment discussions between Buyer or its Controlled Affiliates and such individual.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Seller will not, and ▇'▇▇▇▇▇▇ acknowledge that shall cause its Affiliates (collectively, for purposes of this Section 7.7(a), the “Restricted Entities”) not to, directly or indirectly, for a period of four (4) years following the Closing Date within the State of California and for a period of two (2) years following the Closing Date in order to assure the Buyer that the Buyer will retain the value any other states in which any of the Assetsholders of Deposits or CDARS CDs or their respective property managers or association managers are located as of the Closing Date, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for engage in the Transferred Activities; (ii) offer, directly or indirectly, a period commencing on package of services substantially similar to the Closing Date and expiring on Transferred Activities targeted specifically at or to community associations, condominium associations, home owners associations or the first managers of such associations; or (iii) use any confidential information obtained through Seller's acquisition or ownership of the Transferred Activities to occur of (A) a breach by Toymax provide deposit, lock box or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇cash management services, or (B) terminate or reduce their Transferred Activities relationships with Purchaser; provided, however, that the date which Restricted Entities may do each of the following without any Restricted Entity being deemed to be in violation of this Section 7.7(a):
(1) own or hold up to 10% of the outstanding securities of any entity whose securities are listed and traded on a nationally recognized securities exchange or market that is engaged in the later Transferred Activities (provided that the Restricted Entities otherwise do not control the business or affairs of five (5such entity) years from or hold or exercise rights of ownership with respect to any security in a fiduciary capacity or otherwise for the Closing Date or two benefit of a third party not affiliated with any Restricted Entity
(2) years from the date the Management Services Agreement is terminated (such period shall be referred continue to engage in any Transferred Activities previously conducted by a Person with whom a Restricted Entity becomes affiliated as the "FIRST COVENANT PERIOD")a result of any merger, they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in questionconsolidation, amalgamation business combination, stock sale or purchase, sale or purchase of assets or businesses or like strategic transaction; provided that, in connection with the following products: exercise and play matscase of an acquisition of an entity or an equity interest therein, foam swim toysor of assets or a business, foam pool toys and foam floats (by a Restricted Entity, the "FIRST PROTECTED PRODUCTS"); and
(ii) primary purpose of the transaction is other than providing a means for a period commencing on Restricted Entity to re-enter the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three Transferred Activities; or
(3) continue to provide banking services, including deposit, lock box, lending and cash management services, to the customers identified on Section 7.7(a) of the Seller Disclosure Schedule.
(b) For a period of four (4) years from following the Closing Date or one (1Date, Seller will not, and shall cause its Affiliates not to, solicit for employment any Accepting Employee; provided, however, that nothing in this Section 7.7(b) year from the date the Management Services Agreement is terminated (such period shall be referred deemed to as prohibit Seller or its Affiliates from making solicitations not specifically targeted at Accepting Employees (including job announcements in newspapers and industry publications or on the "SECOND COVENANT PERIOD"Internet).
(c) For a period of four (4) years following the Closing Date, they will not compete with the Buyer Seller and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingnot, directly or indirectly, (i) use any information regarding the Transferred Activities in their possession, including as a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer), engaged in the business of marketing or selling any part of the Protected Products. The foregoing provisions shall notbooks and records that are retained by Seller, however, prohibit the making of passive investments of five percent (5%) to solicit or less engage in other efforts directed to or targeted at any customer or customers of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect Transferred Activities with respect to the purchase of the Assets at the Closingaccepting deposits, it liquidity or he will not directly cash management or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its lending products or his own benefit services or for the benefit of (ii) use such information to take any other Person:
(A) influence or attempt actions that are designed to influence induce any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or Transferred Activities to transfer any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course portion of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Products.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereof.customer's
Appears in 1 contract
Sources: Purchase and Assumption Agreement (First Banks, Inc)
Non-Competition; Non-Solicitation. (a) The Seller covenants and ▇'▇▇▇▇▇▇ acknowledge that in order to assure agrees that, unless the prior written consent of the Buyer that the Buyer will retain the value of the Assetsis obtained, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from after the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD")Closing, they Seller will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingnot, directly or indirectly, as a partnerindividually, officerin association or in combination with any other Person, employeeown, consultant manage, operate, finance, control, or otherwiseparticipate in the ownership, own management, operation, financing or operate control of, be employed by, associated with or lend Seller's name or any similar name to, or lend Seller's credit to, any business whose products, services or Personactivities compete in whole or in part with the products, services or otherwise become or be interested in, or associate with or render assistance to any Person (other than activities of the Buyer), engaged Business anywhere in the business world except in relation to the activities of marketing or selling any of Seller permitted under the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;Supply Agreement.
(b) Each Seller covenants and agrees, unless the prior written consent of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree thatBuyer is obtained, for a period of five (5) years after giving effect to the purchase of the Assets at the Closing, it or he Seller will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, either for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, itself or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(Ci) influence induce or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling induce any of the Protected ProductsTransferred Employees to leave the employ of the Buyer, or (ii) employ, or otherwise engage as an employee, independent contractor, or otherwise, any of the Transferred Employees.
(c) Except as may be required in Seller covenants and agrees, unless the business prior written consent of the Buyer is obtained, for a period of five (5) years after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall will not at any time, directly or indirectly, use either for itself or purport to authorize any other Person, (i) solicit the business of any Person known to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are Seller to be a customer of the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product LineBusiness, whether or not Seller had personal contact with such use Person, with respect to the sale of such Person of products or services which compete in whole or in part with the products, services or activities of the Business, except in relation to the activities of Seller permitted under the Supply Agreement or (ii) induce or attempt to induce any customer or supplier of the Business, or other Third-Party with whom the Business has a relationship to cease doing business with the Business.
(d) Seller acknowledges that the covenants set forth in this Section 5.10 are an essential element of this Agreement and that, but for its agreement to comply with these covenants, Buyer would be not have entered into this Agreement and that such covenants are necessary in order to protect and maintain the proprietary and other business interests of the Buyer and are reasonable and proper.
(e) Nothing in this Section 5.10 shall prevent Seller from (i) being engaged in the activities of Seller permitted under the Supply Agreement (ii) owning directly or indirectly not more than 5% of the issued shares voted on a recognized stock exchange of a company engaged in a business competitive that competes in whole or in part with that the products, services or activities of the Business anywhere in the world.
(f) It is the intention of the parties that the provisions of Section 5.10 hereof shall be enforceable to the fullest extent permissible under applicable Law. Seller acknowledges that a breach or default in the full performance of any covenants, agreements or obligations of Seller set forth in this Section 5.10 will cause substantial and irreparable injury to Buyer and that such injury would not be readily susceptible to measurement and compensation in monetary damages. Accordingly, Seller covenants and agrees that if Seller breaches or defaults in the full performance of any of its Subsidiaries the covenants, agreements or Affiliates. As used hereinobligations of Seller set forth in this Section 5.10, Buyer will have, in addition to all other rights and remedies available to it, at law or in equity, the phrase "competitive business" means any business competitive with right to seek appropriate injunctive relief.
(g) If Buyer prevails in a proceeding for damages or injunctive relief, Seller agrees that Buyer, in addition to other relief, shall be entitled to reasonable attorney's fees, costs and the type expenses of business engaged litigation incurred by Buyer in securing the relief granted by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereofcourt.
Appears in 1 contract
Sources: Asset Purchase Agreement (Tollgrade Communications Inc \Pa\)
Non-Competition; Non-Solicitation. (a) The Seller Each of Seller, John Kim and ▇'▇▇Terri Kim hereby covenants and agrees that, from and a▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇Clos▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any ▇ntil the third (3rd) anniversary of the Transaction DocumentsClosing Date, which breach is not cured within sixty (60) days after notice thereof from the Seller Seller, John Kim and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participating, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant PeriodTerri Kim, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, shall not directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Products.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller and i▇'▇▇▇▇▇▇▇y par▇▇▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely management, operation or control of, or have any financial or ownership interest in, or otherwise financially assist, or permit its name to be used in connection with the Funnoodle Product Linewith, whether any business or not such use would be entity that (i) engages in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged Business or (ii) manufactures, markets or distributes any products or services that compete with the Business, in by the Sellereach case (i) and (ii) above, the Buyer in any market, jurisdiction or territory in which Purchaser or any of their Subsidiaries its Affiliates are then engaging in the Business.
(b) Seller acknowledges and agrees that if Seller breaches any provision of this Section 5.14 or of Section 5.5, any remedy at law would be inadequate and insufficient and would cause Purchaser irreparable harm and that Purchaser, in addition to seeking monetary damages in connection with any such breach, shall be entitled to specific performance and injunctive and other equitable relief to prevent or restrain a breach of this Section 5.14 or of Section 5.5 or to enforce the provisions hereof without the requirement of posting bond or other security. Each of John Kim and Terri Kim acknowledges and agrees that if John Kim or ▇▇▇▇▇ ▇▇m, as ▇▇▇ ▇▇▇▇ may be, breaches any provision o▇ ▇▇▇▇▇▇n 5.▇▇(▇), ▇▇y remedy at law would be inadequate and insufficient and would cause Purchaser irreparable harm and that Purchaser, in addition to seeking monetary damages in connection with any such breach, shall be entitled to specific performance and injunctive and other equitable relief to prevent or restrain a breach of Section 5.14(a) or to enforce the provisions hereof without the requirement of posting bond or other security. If any of the covenants contained herein, or any part hereof, is hereafter construed to be invalid or unenforceable, the same shall not affect the remainder of the covenant or covenants, which shall be given full force and effect, without regard to the invalid portions. If any of the covenants contained herein, or any part hereof, is held to be unenforceable because of the duration of such provision or the geographic area covered thereby or for any other reason, the parties agree that the court making such determination shall have the power to reduce the duration and/or geographic area of such provision or otherwise modify the terms of any such covenant and, in its reduced form, said provision shall then be enforceable.
(c) Seller hereby covenants and agrees that, from and after the Closing and until the second (2nd) anniversary of the Closing Date, Seller shall not directly or indirectly, hire, solicit or encourage to leave the employment of Purchaser or any of its Affiliates, any employee of Purchaser or any of its Affiliates at or hire any such employee who has left the date employment of Purchaser or any of its Affiliates within one (1) year of the termination of such employee's employment with Purchaser or any of its Affiliates; PROVIDED, HOWEVER that this Agreement shall in no way restrict Seller from soliciting for employment (and subsequently hiring) any Person through the means of an advertisement for employment in a newspaper of general circulation or by other similar means.
(d) Purchaser hereby covenants and agrees that, from and after the Closing and until the second (2nd) anniversary of the Closing Date, Purchaser shall not directly or indirectly, hire, solicit or encourage to leave the employment of Seller or any of its Affiliates, any employee of Seller or any of its Affiliates or hire any such employee who has left the employment of Seller or any of its Affiliates within one (1) year of the termination of such employee's employment with Seller or any of its Affiliates; PROVIDED, HOWEVER that this Agreement shall in no way restrict Purchaser from soliciting for employment (and subsequently hiring) any Person through the means of an advertisement for employment in a newspaper of general circulation or by other similar means.
(e) Seller and Purchaser intend that the provisions of this Section 5.14 be enforced to the fullest extent permissible under the Laws applied in each jurisdiction in which enforcement is sought. If any provision of this Section 5.14, or any part hereof, shall be held by a court of competent jurisdiction to be invalid or unenforceable, this Section 5.14 shall be amended to revise the scope of such provision, to make it enforceable to the fullest extent permitted by applicable Law, if possible, or to delete such provision or such part, such revision or deletion to apply only with respect to the operation of this Section 5.14 in the jurisdiction of such court.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Seller Tanus, for himself and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value of the Assetshis Affiliates and Family Members, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) hereby agrees for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from following the Closing Date or one Date, and each Seller, hereby agrees for a period of two (12) year from years following the date the Management Services Agreement is terminated (such period shall be referred Closing Date, not to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participating, directly or indirectly:
(i) engage or invest in, as a partnerown, officermanage, employeeoperate, consultant or otherwisefinance, own or operate any business or Personcontrol, or otherwise become or be interested inparticipate in the ownership, management operation, financing, or associate with control of, be employed by, associated with, or in any manner connected with, lend such Seller’s name or any similar name to, lend their credit to or render services, assistance to or advice to, any Person (other than the Buyer), engaged Competing Business anywhere in the business of marketing or selling any of the Protected Products. The foregoing provisions shall notNorth America; provided, however, prohibit the making of passive investments of that Tanus and his Affiliates and Family Members, and each such Seller may purchase or otherwise acquire up to (but not more than) five percent of any class of equity securities (5%including securities convertible into or exchangeable for such equity securities) of any Competing Business (but without otherwise participating in the activities of such Competing Business) if such equity securities (including securities convertible into or exchangeable for such equity securities) are listed on any national or registered security exchange or have been registered under Section 12(g) of the Securities Exchange Act of 1934;
(ii) whether for Tanus, his Affiliates or Family Members or for such Seller’s own account or for the account of any other Person, solicit Competing Business from any Person known by any Seller to be a customer of the Company or any Subsidiary, whether or not Tanus, his Affiliates or Family Members, or such Seller had personal contact with such Person during and by reason of Tanus, his Affiliates or Family Members’ or such Seller’s employment or ownership of the Company;
(iii) whether for Tanus, his Affiliates or Family Members or for such Seller’s own account or the account of any other Person (A) solicit, any person who is an employee of the Company or any Subsidiary (except any individual identified on Schedule 7.4(a)(iii) of the Disclosure Schedule) or less in any manner induce or attempt to induce any employee of the stock Company or any Subsidiary (except any individual identified on Schedule 7.4(a)(iii) of the Disclosure Schedule) to terminate his employment with the Company or any company listed on a national securities exchange such Subsidiary; or traded in (B) interfere with the over-the-counter market;Company’s or its Subsidiaries’ relationship with any Person; or
(iv) publicly disparage the Company, its Subsidiaries or any of their stockholders, members, managers, directors, officers, employees, or agents.
(b) Each of The Parties hereto agree that irreparable damage may occur in the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling event that any of the Protected Productsprovisions of this Section 7.4 was not performed in accordance with its specified terms or was otherwise breached. It is accordingly agreed that, subject to the determination of a court of competent jurisdiction, Purchaser shall be entitled to an injunction or injunctions to prevent breaches or threatened breaches of this Section 7.4 and to enforce specifically the terms and provisions herein in any court of competent jurisdiction, this being in addition to any other remedy to which they are entitled at law or in equity (without any requirement to post bond).
(c) Except Tanus and each Seller acknowledge that the restrictions contained in this Section 7.4 are reasonable and necessary to protect the legitimate interests of Purchaser and constitute a material inducement to Purchaser to enter into this Agreement and consummate the transactions contemplated by this Agreement. The covenants contained in this Section 7.4 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as may be required in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ written shall not at invalidate or render unenforceable the remaining covenants or provisions hereof, and any timesuch invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction. If, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereoftime of enforcement of this Section 7.4, a court of competent jurisdiction determines that the restrictions stated herein are unreasonable under the circumstances then existing, Tanus and each Seller agree that the maximum period, scope or geographical area reasonable under such circumstances shall be substituted for the stated period, scope or area.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Fortune Brands Home & Security, Inc.)
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing on From the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) until the date which that is the later of five (5) years after the Closing Date, each of the Key Sellers shall not, and shall cause its Affiliates not to, without the prior written consent of Buyer (which consent may be withheld for any reason), directly or indirectly, (i) hire or solicit for employment any employee of an Acquired Company as of the Effective Date or (ii) induce or encourage any such employee to no longer be employed by an Acquired Company; provided, however, that nothing in this Section 5.12(a) shall prohibit the Key Sellers or any of their Affiliates from (A) engaging in general solicitations to the public or general advertising not targeted at employees of an Acquired Company, (B) hiring any employee whose employment has been terminated by an Acquired Company following the Closing or (C) hiring any employee whose employment with an Acquired Company has been terminated by the employee following the Closing (but only after at least one hundred and eighty (180) days have passed since the date of termination of employment).
(b) From the Closing Date or two until the date that is five (25) years from after the date Closing Date, each of the Management Services Agreement is terminated Key Sellers shall not, and shall cause its Affiliates not to, without the prior written consent of Buyer (such period shall which consent may be referred to as the "FIRST COVENANT PERIOD"withheld for any reason), they will not compete with directly or indirectly, (i) engage in the Buyer and its Subsidiaries and Affiliates at Competing Business anywhere in the time in questionRestricted Territory, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for own any equity interest, or operate, control or participate (including as a period commencing on joint venture partner, agent, representative, consultant or lender) in any Person that engages directly or indirectly in the Closing Date Competing Business in the Restricted Territory, (iii) solicit any customers (or potential customers) of an Acquired Company or (iv) intentionally interfere with the business relationships between an Acquired Company and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller its customers or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Productssuppliers. For purposes of this Section 5.7Agreement, the term compete shall include acting or participating, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer), engaged in A) “Competing Business” means the business of marketing or selling any designing and manufacturing fire retardant and related products, and the research, development, testing, use, engineering, having made, supplying, importing, exporting, marketing, packaging, distributing, licensing, selling, offering for sale and commercialization of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller such products and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer “Restricted Territory” means the United States of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected ProductsAmerica and Canada.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereof.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Compass Minerals International Inc)
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value Each of the AssetsSellers agrees that from the Closing until the second anniversary of the Closing, it will not directly or indirectly engage or invest in any business in the Seller and ▇'▇▇▇▇▇▇ agree that:
United States or Canada in competition with the Business as conducted immediately prior to the Closing. Notwithstanding the foregoing, this Section 7.6(a) shall not prohibit (i) for a period commencing on the Closing Date and expiring on the first to occur of Sellers, directly or through any Affiliate, from conducting (A) a breach (1) the business of the Prime Energy Division and (2) any other businesses conducted by Toymax the Sellers or their Affiliates (excluding the Buyer of any of their material obligations Subsidiaries), in each case as conducted immediately prior to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or Closing; (B) the date business of selling, renting (as long as such renting is not in competition with the Business) and leasing products manufactured by the Sellers or Seller Affiliates or the sale of used equipment; or (C) business outside of the United States and Canada, (ii) the Sellers, directly or through any Affiliate, from investing in or holding not more than 10% of the outstanding capital stock or other ownership interests of any Person that is in competition with the Business; and (iii) the Sellers, directly or through any Affiliate, from hereafter acquiring and continuing to own and operate any entity which is has rental operations that compete with the later Business if the rental revenues in the United States and Canada account for no more than 20% of five such entity's consolidated revenues at the time of such acquisition.
(5b) years ACAB agrees that from the Closing Date until the second anniversary of the Closing, it will not, and it will cause its Affiliates not to, (i) hire any executive or two senior officer (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"including any regional vice-president), they will not compete with regional director, corporate director or district manager of the Buyer and Company or any of its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
or (ii) for a period commencing on knowingly solicit any other employee of the Closing Date and expiring on Company or any of its Subsidiaries. Notwithstanding the first to occur foregoing, this Section 7.6(b) shall not be violated by the solicitation of (A) a breach by Toymax persons through ads in newspapers, trade periodicals or the Buyer of any of their material obligations to like (or other solicitations directed at the Seller public, or ▇'▇▇▇▇▇▇ under any general segments of the Transaction Documentspublic, which breach is in general) or through the services of executive search firms engaged in a broad-based search (and not cured within sixty engaged for the purpose of circumventing such provisions).
(60c) days after notice thereof from The Investors and the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years Company agree that from the Closing Date until the second anniversary of the Closing, none of them will directly or one (1) year from indirectly engage or invest, and each will cause all its Affiliates to not directly or indirectly engage or invest, in any business in the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete United States or Canada in competition with the Buyer and its Subsidiaries and Affiliates at the time Prime Energy Division in question, in connection with the following products: toy sprinklers, water slides and all other nonrespect of renting oil-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") free compressors; it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-poolthis Section 7.6(c) water toys shall not be considered Protected Products. For purposes of this Section 5.7, prohibit the term compete shall include acting Investors or participating, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree thatfrom (i) performing its obligations or exercising its rights under the Integrated Supplier Alliance Agreement between RSC and Prime Energy Rental, after giving effect to the purchase of the Assets at the ClosingLLC, it or he will not directly or indirectlydated September 1, during the First Covenant Period 2006, and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify agreement between such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Products.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller person and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer ACAB or any of its Subsidiaries Affiliates entered into after the date hereof or Affiliates. As used herein(ii) renting or making available for rent to customers of the Business any equipment manufactured or distributed by any Person if such products are not available from the Prime Energy Division on commercially reasonable market terms.
(d) In the event that the covenants contained in Sections 7.6(a), 7.6(b) or 7.6(c) are more restrictive than permitted by Law, the phrase "competitive business" means parties hereto agree that such covenants shall be enforceable and enforced to the extent permitted by Law. Each of the parties hereto acknowledges and agrees that the remedy at law for any business competitive with breach of the type requirements of business engaged this Section 7.6 would be inadequate, and agrees and consents that without intending to limit any additional remedies that may be available, temporary and permanent injunctive and other equitable relief may be granted without proof of actual damage or inadequacy of legal remedy in by the Seller, the Buyer or any proceeding which may be brought to enforce any of the provisions of this Section 7.6.
(e) Notwithstanding the covenants of Sections 7.6(a) and 7.6(c) above, it shall not be a breach of this Agreement for the Investors or their Subsidiaries respective Affiliates, or Affiliates the Sellers or their Affiliates, to engage in the rental of equipment that would otherwise be prohibited by Sections 7.6(a) and 7.6(c) above, provided that the equipment rented is obtained on a re-rent basis from an Affiliate of the other party, which shall offer such equipment for re-rent at commercially reasonable rates subject to availability. For the date hereofremoval of doubt, neither a disagreement over the rate nor non-availability shall excuse violation of the said Sections 7.6(a) and 7.6(c) above.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for For a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is hereof until the later of five (5) years from the fifth anniversary of the Initial Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIODRestricted Period"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products ST and the Second Protected Products collectivelySellers shall not, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall cause their Affiliates not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingto, directly or indirectly, as a partner(i) own, officermanage, employeeoperate, consultant control or participate in the ownership, management, operation or control of any business, whether in corporate, proprietorship or partnership form or otherwise, own or operate (ii) provide consultative or advice services to any individual or entity, in either case that is (x) engaged in production, sale or distribution of telecommunication services (a "Telecommunications Company"), or (y) that otherwise competes with the Business, in each case, including any business actually conducted or Person, or otherwise become or about to be interested in, or associate with or render assistance to any Person conducted during the Restricted Period (other than the Buyera "Restricted Business"), engaged in including but not limited to the prepaid wireless business of marketing or selling any of the Protected Products. The foregoing provisions shall notprepaid calling card, carrier wholesale and dial-around business; provided, however, prohibit that the making restrictions contained in this Section 7.10(a) shall not restrict the acquisition of a passive investments of five percent (5%) or less of investment by ST and the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree thatSellers, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during in the First Covenant Period aggregate of less than 5% of the outstanding capital stock of any company, whether publicly traded or privately held, engaged in a Restricted Business or, the ownership of the securities of Restricted Businesses set forth in Schedule 7.10 (which amount of securities shall not be increased without BEI's consent; provided further, however, ST may be employed by any entity other than a Telecommunications Company that owns an interest (which interest represents no more than 5% of such entity's consolidated income or consolidated assets) in a Restricted Business so long as ST is not employed by, or in any way involved with the Restricted Business and Second Covenant Perioddoes not provide, whether directly or indirectly, any service (whether as the case may beconsultant, for its advisor or his own benefit otherwise) to or for the benefit of any other Person:the Restricted Business or the entity in connection with such Restricted Business; and further provided the confidentiality provisions of this Agreement shall be complied with.
(Ab) influence For the Restricted Period, the Sellers and ST shall not and shall cause their Affiliates not to: (i) cause, solicit, induce or attempt to influence encourage any Person (other than employees Employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
DR Partnership to leave such employment or hire, employ or otherwise engage any such individual; or (Bii) influence cause, induce or attempt to influence encourage any material actual or prospective client, customer, supplier or licensor of the Business (including any existing or former customer of the Sellers or the Subsidiaries and any Person that becomes a supplier client or customer of the Buyer or its Affiliates, Business after the Initial Closing) or any other Person who has a material business relationship with whom the Buyer or its Affiliates shall have dealtBusiness, to terminate or modify any written such actual or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Productsprospective relationship.
(c) Except as may be required The covenants and undertakings contained in the business this Section 7.10 relate to matters which are of a special, unique and extraordinary character and a violation of any of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport terms of this Section 7.10 will cause irreparable injury to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used hereinDR Partnership, the phrase "competitive business" means amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any business competitive with the type breach of business engaged in by the Sellerthis Section 7.10 will be inadequate. Therefore, the Buyer or DR Partnership will be entitled to an injunction, restraining order or other equitable relief from any court of their Subsidiaries competent jurisdiction in the event of any breach of this Section 7.10 without the necessity of proving actual damages or Affiliates posting any bond whatsoever. The rights and remedies provided by this Section 7.10 are cumulative and in addition to any other rights and remedies which the Buyer or DR Partnership may have hereunder or at law or in equity. In the date hereofevent that the Buyer or DR Partnership were to seek damages for any breach of this Section 7.10, the portion of the Purchase Price which is allocated by the parties to the foregoing covenant shall not be considered a measure of or limit on such damages.
(d) The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 7.10 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the applicable party.
Appears in 1 contract
Sources: Asset Purchase and Contribution Agreement (Leucadia National Corp)
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure Until the Buyer that the Buyer will retain the value fifth anniversary of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing on the Closing Date and expiring on (the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"“Non-Competition Period”), they will not compete with the Buyer Seller shall not, and shall cause each of its Subsidiaries and Affiliates at the time any other Person in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingholds, directly or indirectly, Controlling Equity Interests (such Persons, including their respective successors or assigns, are collectively referred to herein as a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer“Restricted Parties”), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retainto, directly or indirectly, form, own, manage, operate, join, control or participate (whether as a partner, agent, representative, or otherwise) in the ownership, management, operation or control of any Person in any territory in which the Company operates immediately prior to Closing or has taken reasonable measures as of the Closing Date to begin operating (the “Territory”), that, directly or indirectly competes with the business of the Company as it shall exist immediately prior to the Closing Date (including only changes or expansions in the business of the Company or the products sold or distributed by the Company that are expressly contemplated as of the Closing (including, for the avoidance of doubt, the Alternate Site Products)) (a “Competing Business”). In addition, during the Non-Competition Period, neither Seller nor any Restricted Party shall have, without Buyer’s prior written consent, any direct or indirect equity ownership in any such Person, other than as an owner of 2% or less of the outstanding stock of a publicly traded corporation. For the avoidance of doubt, Seller and the Restricted Parties shall not be restricted by the provisions of this Section 6.8 from acquiring (whether through a purchase of stock or assets, through a merger or consolidation, or otherwise) any Person that derives less than ten percent (10%) and less than $25,000,000 of its gross revenues (as measured from the conclusion of any of such Person’s last three completed fiscal years) from Competing Businesses in the aggregate; provided, however, that following an acquisition permitted by this sentence, if such acquired Person derives more than twelve percent (12%) or more than $30,000,000 of its gross revenues from Competing Businesses in the aggregate during any fiscal year that ends during the Non-Competition Period, Seller or such Restricted Party (as applicable) shall promptly provide written notice to Buyer of such fact and shall divest, as soon as reasonably practicable (but in any event within twelve months of providing such notice), a portion of the business of such Person that engages in Competing Businesses such that less than twelve percent (12%) and less than $30,000,000 of such Person’s gross revenues would be derived from Competing Businesses during the remainder of the Non-Competition Period. Seller shall keep Buyer informed, on a reasonably current basis and in reasonable detail, of the status of Seller’s efforts to divest such business (or portion thereof) in accordance with the preceding proviso and Buyer shall have the right to participate as a potential purchaser in the sale process for such business (or portion thereof) on terms at least as favorable as those being offered to other participants in the sale process.
(b) Until the third anniversary of the Closing Date, Seller shall not, and shall cause each of the Restricted Parties not to, directly or indirectly, for itself or on behalf of any Person, (i) solicit for employment or hire any Company employee; provided, however that any such employee may seek employment with the applicable Person in response to a general advertisement not directed at such employee and the applicable Person may hire any employee who responds to such general advertisement; (ii) approach any supplier or licensee of the Company with respect to products or services it provided to the Company at any time during the twelve-month period prior to the Closing with the intention of harming the business or operations of the Company by causing such Person to decrease or cease doing business with the Company; or (iii) approach any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or Company at any other Person with whom time during the Buyer or its Affiliates shall have dealt, twelvemonth period prior to terminate or modify any written or oral agreement or course of dealing the Closing with the Buyer intention of harming the business or its Affiliates, or operations of the Company by causing such Person to otherwise interfere purchase the products of any business competitive with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected ProductsCompany.
(c) Except as Seller acknowledges that the provisions set forth in this Section 6.8 are an integral part of the success of the Company throughout the Territory. If, on or after the Closing Date, Seller or any Restricted Party utilizes its reputation and goodwill in competition with Buyer, Buyer will be deprived of the benefits it has bargained for pursuant to this Agreement. In the event that the agreements in this Section 6.8 shall be determined by any court of competent jurisdiction to be unenforceable by reason of extending for too great a time or over too great a geographical area or by reason of it being too extensive in any other respect, it shall be interpreted to extend only over the maximum period of time for which it may be required 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.
(d) If Seller or any Restricted Party breaches or threatens to commit a breach of any of the restrictive covenants set forth in this Section 6.8, then the Company and Buyer shall each have the following rights and remedies against Seller or such Restricted Party, each of which shall be independent of the others and severally enforceable, and each of the following rights and remedies is in addition to, and not in lieu of, any other rights and remedies otherwise available to any of them at Law or in equity: the right and remedy to have the restrictive covenants in this Section 6.8 specifically enforced against the Seller or such Restricted Party, including temporary restraining orders and injunctions by any court of competent jurisdiction, it being agreed by Seller that any breach or threatened breach by Seller or any Restricted Party of this Section 6.8 would cause irreparable injury to the Company and Buyer and that money damages would not provide an adequate remedy to the Company or Buyer.
(e) Each of Seller and Buyer intends that the covenants set forth in Sections 6.8(a) and 6.8(b) shall be deemed to be a series of separate covenants, one for each county or province of each and every state, territory or jurisdiction within the Territory, and one for each month of the time periods covered by such covenants.
(f) Seller hereby agrees that in the business event a court of the Buyer after the Closingcompetent jurisdiction declares there has been a breach by Seller or any Restricted Party of Section 6.8(a) or Section 6.8(b), the term of any such covenant so breached shall be automatically extended beyond its intended expiration for a period of time equal to the duration of such breach.
(g) Seller and ▇'▇▇▇▇▇▇ shall not at be responsible for any timebreach of this Section 6.8 by any of its Subsidiaries or any other Person in which Seller holds, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereofControlling Equity Interests.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for For a period commencing on of three years after the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIODRestricted Period"), they Covance shall not, and will cause its subsidiaries not compete with the Buyer and its Subsidiaries and Affiliates at the time in questionto, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingengage, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate in any business or Personthat manufactures recombinant proteins for biotechnology and pharmaceutical clients in preclinical, or otherwise become or be interested inclinical and commercial scale quantities (the "Competing Service") in any country in which, or associate with or render assistance to any Person (other than the Buyer), engaged in the business of marketing or selling any as of the Protected Products. The Closing Date, the Company conducts business or has customers (the "Territory"); provided the foregoing provisions shall not, however, not prohibit Covance or its subsidiaries from (i) continuing to provide any service provided by Covance or its subsidiaries (not including the making of passive investments of five percent (5%Company) or less as of the stock of any company Closing Date; (ii) acquiring, directly or indirectly, securities listed on a any national securities exchange or traded actively in the national over-the-counter market;market of any Person that provides the Competing Service in the Territory, provided that Covance and its Subsidiaries do not, in the aggregate, own directly or indirectly more than five percent of the outstanding voting power or capital stock of such Person; and (iii) acquiring a company (the "Diversified Company") or a business having not more than 10% of its gross revenues in its last fiscal year attributable to providing the Competing Service. Notwithstanding any of the foregoing, this Section 6.05 shall not prohibit any Person (or its Affiliates) that Acquires Covance from providing the Competing Service, whether by acquisition or otherwise, provided that no such Person (or any Affiliate of such Person) may provide the Competing Service through Covance or its subsidiaries, including, without limitation, through the use of any persons employed by Covance at, or anytime during the six month period preceding, the time of such acquisition of any assets or facilities thereof.
(b) Each For a period of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, two years after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for neither Covance nor any of its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retainsubsidiaries shall, directly or indirectly, solicit or induce any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom Company to leave the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course employment of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any wayentity; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Products.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ provided that this covenant shall not at be deemed breached if any time, directly or indirectly, use or purport such employee is responding to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past general employment solicitation by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer Covance or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates subsidiaries which is not specifically directed at the date hereofemployees of the Company.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Seller As an inducement to Purchaser to execute and ▇'▇▇▇▇▇▇ acknowledge that in order deliver this Agreement and to assure consummate the Buyer that transactions contemplated hereby and to preserve the Buyer will retain goodwill associated with the value of the AssetsBusiness, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from and after the Closing Date Date, neither Seller nor Parent shall, and each of Seller and Parent shall cause its respective subsidiaries (other than the Company Entities) not to (in each case, for so long as such respective subsidiaries continue to be subsidiaries of Seller or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"Parent), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participating, directly or indirectly, as a partnerengage in, officer, employee, consultant continue in or otherwise, own or operate carry on any business or Person, or otherwise become or be interested in, or associate that competes in any material respect with or render assistance to any Person (other than the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall notBusiness; provided, however, that the foregoing shall not prohibit the making ownership of passive investments of less than five percent (5%) or less of the stock securities of any company corporation or other entity that is listed on a national securities exchange or traded in the national over-the-counter market;. The geographic scope of this covenant not to compete shall extend worldwide. Recognizing the specialized nature of the Business, Parent and Seller acknowledge and agree that the duration, geographic scope and activity restrictions of this covenant not to compete are reasonable.
(b) Each During the period of twenty-four (24) months from and after the Closing Date, each of Seller and ▇'▇▇▇▇▇▇ Parent shall not, and their each of Seller and Parent shall cause its respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person subsidiaries (other than employees of the Seller providing consulting services to Buyer at the time of ClosingCompany Entities) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retainnot to, directly or indirectly, including through any other Person, solicit, induce or otherwise offer employment or engagement as an independent contractor to, or hire or engage, any Person who is (or during the twelve (12) months prior thereto was) employed as was an employee by of any Company Entity who is a Continuing Employee, unless such Person has been separated from his or her employment or other relationship with Purchaser and each of its Affiliates (including the Buyer Company Entities) for a period of at least six (6) consecutive months; provided, however, that the foregoing shall not restrict any Person from making general solicitations of employment in the ordinary course that are not specifically directed to such employees. Seller and Parent shall use their reasonable best efforts to ensure that any successor to all or its Affiliates;
(B) influence or attempt to influence a supplier or customer substantially all of the Buyer equity, business or its Affiliatesassets of any such respective subsidiaries acquires such equity, business or any other Person with whom assets subject to the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with restrictions set forth in this Section 6.09(b) during such parties in any way; or
twenty-four (C24) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Productsmonth restricted period.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereof.
Appears in 1 contract
Sources: Stock Purchase Agreement (SMART Global Holdings, Inc.)
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure For the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing on the Closing Date and expiring ending on the first to occur earlier of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (Bi) the date which is the later fifth anniversary of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing Newpark Change of Control (the “Restricted Period”) neither Newpark nor any of its Subsidiaries shall, except as permitted by this Section 5.7(a), engage in the business of providing environmental services in the United States (including the States of Alabama, Mississippi and Texas, and each of the Louisiana parishes listed on Schedule 5.7(a)) or the Gulf of Mexico, including any waste management, collection, receiving, transferring, processing or disposal services that are, in any material respect, similar to or competitive with, the Business as being conducted by the Transferred Entities on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS"“Covered Business”). This Section 5.7(a) (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not cease to be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participating, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance applicable to any Person at such time as it is no longer an Affiliate or Subsidiary of Newpark.
(other than b) Notwithstanding the Buyerprovisions of Section 5.7(a), engaged nothing in the business of marketing this Agreement shall preclude, prohibit or selling restrict Newpark or any of the Protected Products. The foregoing provisions shall notits Affiliates or Subsidiaries from (i) acquiring, however, prohibit the making of passive investments of five percent (owning or holding up to 5%) or less % of the stock outstanding securities of any company entity whose securities are listed and traded on a national securities exchange or traded market or any securities required to be registered under the Securities Exchange Act of 1934; or (ii) engaging in any manner in any business activity that would otherwise violate this Section 5.7 that is acquired from any Person (an “Acquired Business”) or is carried on by any Person that is acquired by or combined with Newpark or a Subsidiary of Newpark at any time during the over-the-counter market;Restricted Period (an “Acquired Company”); provided, that, if the aggregate consolidated revenues of the Acquired Business or the Acquired Company attributable to the Covered Business for the fiscal year ending prior to the completion of such purchase or acquisition is in excess of 5% of the consolidated revenues of Newpark and its Subsidiaries for the fiscal year ending prior to such purchase or acquisition (the “Divestiture Threshold”), then, as soon as promptly practicable, Newpark or such Subsidiary shall dispose of all or a portion of the Acquired Business or the Acquired Company that comprises the Covered Business so that the aggregate consolidated revenues for the fiscal year ending prior to the completion of such purchase or acquisition of the remaining portion of the Acquired Business or the Acquired Company that comprises the Covered Business shall be less than the Divestiture Threshold.
(bc) Each During the Restricted Period, neither Newpark nor any of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree thatits Subsidiaries shall, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during (i) solicit for employment or employ any of the First Covenant Period and Second Covenant individuals listed on Schedule 5.7(c) or (ii) solicit for employment or employ any Transferred Employee (other than the individuals listed on Schedule 5.7(c)); provided, however, that this clause (ii) shall not prohibit Newpark or any of its Subsidiaries from making general solicitations not specifically targeted at any Transferred Employees or from employing persons (other than the individuals listed on Schedule 5.7(c)) who respond to such general solicitations, or from employing or hiring any person (other than the individuals listed on Schedule 5.7(c)) who initiates discussions regarding employment without any solicitation by Newpark or any of its Subsidiaries.
(d) During the Restricted Period, as the case may beneither Newpark nor any of its Subsidiaries shall, for its directly or his own benefit or for the benefit of any other Person:
indirectly, (Ai) influence or attempt to influence any Person (other than employees customers, distributors or suppliers of any of the Seller providing consulting services Transferred Entities to Buyer at the time of Closing) divert their business to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer competitor of the Buyer Transferred Entities or its Affiliates, or in any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise way interfere with the Buyer's relationships with relationship between any such parties in customer, distributor or supplier and the Transferred Entities (including any way; or
(C) influence or attempt to influence a supplier or customer senior management member of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Products.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer Newpark or any of its Subsidiaries making any disparaging or Affiliates. As used hereinnegative statements or communications about the Transferred Entities), or (ii) take any action that is designed or intended to have the effect of discouraging any lessor, licensor, or other business associate of any of Transferred Entities from maintaining the same business relationships with the Transferred Entities after the Closing as it maintained with the Transferred Entities prior to the Closing.
(e) Each Newpark Entity agrees and acknowledges that: (i) the provisions of this Section 5.7 do not impose a greater restraint than is necessary to protect the goodwill, Confidential Information or other business interests of the Transferred Entities; (ii) such provisions contain reasonable limitations as to time, geographical area and scope of activity to be restrained; (iii) the consideration provided under this Agreement, including any amounts or benefits provided under ARTICLE II, is sufficient to compensate such Newpark Entity for the restrictions contained in this Section 5.7; and (iv) in any Legal Proceeding that may arise out of or relate to the provisions of this Section 5.7, the phrase "competitive business" means Newpark Entities will have the burden of proving that the non-competition covenants contained herein do not meet the criteria set forth in Texas Business and Commerce Code § 15.50 et seq. Each Newpark Entity agrees that it will not assert that, and it should not be considered that, any business competitive with provision of this Section 5.7 is otherwise void, voidable or unenforceable or should be voided or held unenforceable. It is the type intention of business engaged the Parties that, if any court, arbitrator or tribunal construes any provision or clause of this Section 5.7 to be illegal, void or unenforceable because of the duration of such provision or the area or subject matter covered thereby, such court, arbitrator or tribunal shall reduce the duration, area, or subject matter of such provision, and, in its reduced form, such provision shall then be enforceable and shall be enforced.
(f) Each Newpark Entity agrees and acknowledges that (i) any breach by it of any of the Sellerprovisions contained in this Section 5.7 would cause irreparable damage to Buyer and the Transferred Entities for which monetary damages and other remedies at law may not be adequate, and (ii) Buyer and the Transferred Entities will be entitled to seek a restraining order, an injunction, specific performance, or other form of equitable or extraordinary relief from any court of competent jurisdiction to restrain any threatened or further breach of this Section 5.7 or to require such Newpark Entity to perform its obligations under this Section 5.7, which right to equitable or extraordinary relief will not be exclusive of, but will be in addition to, all other remedies to which Buyer and the Transferred Entities may be entitled under this Agreement, at law, or in equity (including, the Buyer or any right to recover monetary damages). The agreement of their Subsidiaries or Affiliates at each Newpark Entity contained in this Section 5.7 is given as an inducement to, and as part of the date hereofconsideration for, Buyer’s purchase of the Acquired Interests under this Agreement.
Appears in 1 contract
Sources: Membership Interests Purchase Agreement (Newpark Resources Inc)
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge agrees that in order to assure during the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing beginning on the Closing Date and expiring ending on the first third anniversary of the Closing Date it will not, and it will not permit any of its Subsidiaries to: (i)control (within the meaning of the BHC Act, including the rules and regulations promulgated thereunder, or any successor provision) any insured depositary institution with its headquarters located within Puerto Rico, (ii)open or operate a branch of Seller, or of any Subsidiary of Seller, in Puerto Rico that engages in banking, insurance or broker-dealer activities or (iii)actively market banking, securities brokerage or insurance products and services to occur of Persons in Puerto Rico (other than (A) as a breach by Toymax result of worldwide or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documentsregion wide general media advertising not aimed primarily at Persons in Puerto Rico, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) to any Person or any of its Affiliates to whom Seller or any of its Affiliates has provided products or services prior to the date which is the later hereof and (C) to any Person or any of five (5) years from the Closing Date its Affiliates to whom Seller or two (2) years from any of its Affiliates first provides products or services after the date the Management Services Agreement is terminated (such period shall be referred to hereof so long as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, marketing in connection with the following products: exercise first products and play mats, foam swim toys, foam pool toys services provided was not primarily directed to providing products and foam floats services in Puerto Rico) (the "FIRST PROTECTED PRODUCTS"activities referenced in clauses (i); and
, (ii) and (iii), the “Prohibited Activities”); provided that nothing herein will prevent Seller or any of its Subsidiaries from acquiring, and thereafter owning, any entity or business (such entity or business, the “Acquired Business”) that directly or indirectly engages in any of the Prohibited Activities so long as, at the time of the acquisition, the Prohibited Activities account for a less than 20% of the value (as determined in good faith by the board of directors of Seller) of the Acquired Business.
(b) Seller agrees that during the period commencing beginning on the Closing Date and expiring ending on the first to occur anniversary of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD")it will not, they and it will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participating, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Products.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or permit any of its Subsidiaries to, solicit for employment or Affiliatesemploy any person who was in a senior vice president or more senior position with any of the Companies on the Closing Date; provided that (i)the foregoing shall not apply to the Excepted Employees, (ii)nothing herein shall apply to any person who has left the employment of the Companies other than as a result of a breach of this provision and (iii)the non-solicitation restrictions of this paragraph shall not apply to any general solicitations for employment, such as any newspaper or Internet help wanted advertisement, or any search firm engagement which, in any such case, is not directed or focused on personnel employed by the Companies. As used herein, the phrase "competitive business" term “Excepted Employees” means any business competitive with the type persons set forth in Section 7.06(b) of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereofSeller Disclosure Schedules.
Appears in 1 contract
Sources: Subscription Agreement (Oriental Financial Group Inc)
Non-Competition; Non-Solicitation. (a) The Prior to the fourth (4th) anniversary of the Closing Date, no Seller or any Partner, Stockholder or Member shall, directly or indirectly through any Affiliate thereof, except as hereinafter permitted, (i) engage in, carry on, participate in or have any interest in, whether alone or in conjunction with any Person, or as a holder of an equity or debt interest of any Person, or as a principal, agent or otherwise, any business competing with the Business as conducted on the Closing Date by Sellers in the United States of America; (ii) assist others in engaging in any business competing with the Business in any manner described in the foregoing clause (i); or (iii) induce any supplier, customer or other Person doing business with either Purchaser to terminate its relationship with such Purchaser. Anything hereinabove contained to the contrary notwithstanding, the Partnership, the Partners and ▇'▇the Stockholders may continue to own, directly or indirectly, equity interests in, and ▇▇▇▇▇ acknowledge that in order may continue to assure the Buyer that the Buyer will retain the value of the Assetsperform "high-level" oversight management for Impact Transportation, the Seller LLC and ▇'▇Impact Transload & Rail, LLC, each a California limited liability company, but only if (A) neither ▇▇▇▇▇ agree that:
(i) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇nor ▇▇▇▇▇ under actively participates in the day-to-day management or operation of such entities, and (B) such entities do not engage in, carry on, participate in or have any interest in, whether alone or in conjunction with any other Person, or as a holder of an equity or debt interest of any Person, or as a principal, agent or otherwise, any business involving the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from provision of third-party international steamship services or the Seller and ▇'reloading of international containers with domestic freight. ▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participating, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Products.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at have the right to participate in the day-to-day and "high-level" oversight management and operation of Impact Transportation, LLC and Impact Transload & Rail, LLC, subject to the provisions of subsection (B) above. Sellers shall engage an outside accounting firm to perform the accounting services for the Retained Entities which were previously performed by the employees of Sellers.
(b) Prior to the fourth (4th) anniversary of the Closing Date, no Seller or any timePartner, Stockholder or Member shall, directly or indirectlyindirectly through any Affiliate, use solicit for employment or purport hire any Transferred Employee that remains an employee of either Purchaser at the time of or within the three (3) month period prior to authorize such hiring or solicitation by any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer Partner, Stockholder, Member or any of their Subsidiaries Affiliates.
(c) Sellers, the Partners, the Stockholders and the Members acknowledge that the restrictions, prohibitions and other provisions of this Section 15.5 are reasonable, fair and equitable in scope, terms and duration, are necessary to protect the legitimate business interests of Purchasers, and are a material inducement to Purchasers to enter into the transactions contemplated by this Agreement.
(d) It is the desire and intent of the parties to this Agreement that the provisions of this Section 15.5 shall be enforced to the fullest extent permissible under applicable Law and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of this Section 15.5 shall be adjudicated to be invalid or unenforceable, such provision shall be deemed amended to delete or modify (including to limit or reduce its duration, geographical scope, activity or subject) the portion adjudicated to be invalid or unenforceable, such deletion or modification to apply only with respect to the operation of such provision of this Section 15.5 in the particular jurisdiction in which such adjudication is made and to be made only to the extent necessary to cause the provision as amended to be valid and enforceable.
(e) Sellers, the Partners, the Stockholders and the Members acknowledge and understand that the provisions of this Section 15.5 are of a special and unique nature, the loss of which cannot be accurately compensated for in damages by an action at law and that the breach of the provisions of this Section 15.5 would cause Purchasers irreparable harm. In the event of a breach or threatened breach by any Seller, Partner, Stockholder or Member or any of their Affiliates at of the date hereofprovisions of Section 15.5, Purchasers shall be entitled to seek an injunction restraining it from such breach. In the event of a breach or threatened breach of Section 15.5(a) involving either Impact Transportation, LLC or Impact Transload & Rail, LLC, which Sellers and the Partners, Stockholders or Members are unable to cure or prevent after exercising their reasonable best efforts, each of Sellers and the Partners, Stockholders and Members, as applicable, agrees to sell, assign, transfer or otherwise dispose of its direct or indirect equity interests in Impact Transportation, LLC or Impact Transload & Rail, LLC, as applicable, within four (4) months of such breach or threatened breach (the "Disposition Period"). If any Seller, Partner, Stockholder or Member, as applicable, is unable to dispose of its direct or indirect equity interests in Impact Transportation, LLC or Impact Transload & Rail, LLC, as applicable, within the Disposition Period, then (1) such Seller, Partner, Stockholder or Member shall thereafter continue to use all commercially reasonable efforts to dispose of such interests as soon as possible and (2) any profits or other economic benefits derived by or payable to such Seller, Partner, Stockholder or Member after the Disposition Period as a result of either Impact Transportation, LLC or Impact Transload Rail, LLC, as applicable, providing third party international steamship services or reloading international containers with domestic freight shall accrue to the benefit of and shall be paid or otherwise conveyed to Parent. Nothing herein contained shall be construed as prohibiting Purchasers from pursuing any other remedies available for any breach or threatened breach of this Section 15.5, and the pursuit of an injunction or any other remedy shall not be deemed to be an exclusive election of such a remedy.
(f) For the avoidance of doubt, the parties agree that nothing in Section 15.5 shall prohibit or restrict Sellers or any Partner, Stockholder or Member from selling, assigning, transferring or otherwise disposing of their respective equity interests in any Retained Entity.
(g) In the event of a breach or threatened breach of Section 15.5(a) or (b), Purchasers may bring an action only against the offending Seller, Partner, Stockholder, Member or Affiliate thereof and, for the avoidance of doubt, any Seller, Partner, Stockholder, Member or Affiliate thereof that is not involved in the breach or threatened breach shall have no responsibility for such breach or threatened breach.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order As a material inducement to assure the Buyer that the Buyer will retain the value of the AssetsBuyers to enter into this Agreement, the Seller Sellers and ▇'▇▇▇▇▇▇ the Sellers’ Guarantors agree that:
(i) , for a period commencing on the Closing Date and expiring on terminating two (2) years after the first Closing Date, such Person will not, directly or indirectly (whether by itself, through an Affiliate, partnership or otherwise) undertake, participate, be engaged or have any financial or other interest in, or in any other manner advise or assist any other Person in connection with the operation of, a Competing Business anywhere in the world; provided, however, that (i) in the event that all or substantially all of the equity of a Seller or an Affiliate of a Seller (including the Sellers’ Guarantors), or all or substantially all of the assets of a Seller or an Affiliate of a Seller (including the Sellers’ Guarantors), is sold or otherwise transferred to occur of an unaffiliated third party, this provision will have no further force or effect with respect (A) to such Seller or such Affiliate (in the case of the sale of all or substantially all of the equity of such Seller or such Affiliate) or (B) the acquiror of such Sellers’ or such Affiliate’s assets (in the case of the sale of all or substantially all of the assets of such Seller or such Affiliate), and (ii) this provision will have no further force or effect with respect to an acquisition by any Seller or an Affiliate of any Seller (including the Sellers’ Guarantors) of any business (whether by an acquisition of assets, equity or otherwise) that is involved in designing, developing, marketing, manufacturing, selling or distributing baseball or softball equipment, products, gear, apparel or related accessories (a breach by Toymax “Permitted Business”), or the Buyer conduct of such Permitted Business following such acquisition; provided, that the gross sales of such Permitted Business during the twelve month period immediately preceding such acquisition did not account for more than five percent (5%) of the aggregate United States market share (on a wholesale or retail basis) of the baseball and softball equipment manufacturing industry; provided, further that such Permitted Business does not design, develop, market, manufacture, sell or distribute any lacrosse equipment, products, gear, apparel or related accessories. The Sellers and the Sellers’ Guarantors acknowledge that any breach of their material obligations this Section 4.10(a) will cause irreparable harm to the Seller Buyers and that the Buyers’ remedy at law will be inadequate. For the avoidance of doubt, this Section 4.10(a) shall not be deemed to limit or ▇'otherwise apply to (i) Fenway Partners, LLC or its investment affiliates and portfolio companies (other than E▇▇▇▇▇-▇▇▇▇ under any of Sports, LLC and its Subsidiaries) or (ii) the Transaction Documents, which breach is not cured within sixty Ontario Teachers’ Pension Plan or its investment affiliates and portfolio companies (60) days after notice thereof from the Seller and ▇'other than E▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇-▇▇▇▇ under any Sports, LLC and its Subsidiaries).
(b) The Parties agree, for a period of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred Closing Date, not to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participating, directly or indirectly, solicit or hire for employment or employ any person holding a title of “manager” or higher who is employed by the other Party (or an Affiliate thereof) immediately following the Closing. For the avoidance of doubt, this Section 4.10(b) shall not be deemed to apply to (i) general solicitations of employment by use of advertisements in the media that are not specifically directed at employees of the Parties or any of their Affiliates from and after the Closing and the hiring as a partnerresult thereof, officer, employee, consultant (ii) the solicitation or otherwise, own hiring of any individual that has not been employed by the Parties or operate any business of their Affiliates any time during the six-month period preceding the solicitation or Person, hiring or otherwise become (iii) the solicitation or be interested in, or associate with or render assistance to any Person (other than hiring by the Buyer), engaged in the business Buyers’ of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent “Taiwan-based Product Creation Employees” (5%) or less of the stock of any company listed on a national securities exchange or traded as defined in the over-the-counter market;
(bTransition Services Agreement). For the avoidance of doubt, this Section 4.10(b) Each shall not be deemed to limit or restrict Fenway Partners, LLC, the Ontario Teachers’ Pension Plan, Kohlberg & Co., L.L.C. or any of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period investment affiliates and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Productsportfolio companies.
(c) Except as may be required in The Sellers and the business Sellers’ Guarantors agree, for a period of one (1) year from the Closing Date, not to directly solicit, encourage or influence (or attempt to solicit, encourage or influence), any customer of the Buyer after Business (including any Person who has been a customer of the Business at any time during the 12 month period before the Closing) to alter, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly reduce or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection terminate its business relationship with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer Buyers or any of their Subsidiaries Affiliates. For the avoidance of doubt, this Section 4.10(c) shall not be deemed to limit or Affiliates at otherwise apply to Fenway Partners, LLC, the date hereofOntario Teachers’ Pension Plan or any of their respective investment affiliates and portfolio companies.
(d) Accordingly, in the event of a breach or threatened breach of this Section 4.10(a), (b), or (c) by the Sellers or the Sellers’ Guarantors, the Buyers shall have the right to seek temporary or permanent injunctive relief in any court of competent jurisdiction upon such notice to the Sellers or the Sellers’ Guarantors as shall be required by applicable law, in addition to and not in substitution for any other remedy the Buyers may have.
Appears in 1 contract
Sources: Asset Purchase Agreement (Easton-Bell Sports, Inc.)
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for For a period commencing on the Closing Date and expiring on ending on, (x) in the first to occur case of clauses (Ai), (ii) a breach by Toymax or and (iii) below, the Buyer second anniversary of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two and (2y) years from in the date case of clause (iv) below, the Management Services Agreement is terminated third anniversary of the Closing Date, (such period shall be referred to as the "FIRST COVENANT RESTRICTED PERIOD"), they will the Sellers' Representative shall not, and shall cause its Subsidiaries (collectively, "RESTRICTED PERSONS") not compete to, directly or indirectly:
(i) own, manage, operate, control or participate in the ownership, management, operation or control of, or render services to, any business, whether in corporate, proprietorship or partnership form or otherwise, that competes with the Buyer and business of, or provides services similar to the services provided by, the Company or any of its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the a "FIRST PROTECTED PRODUCTSRESTRICTED BUSINESS"); and
(iiPROVIDED, HOWEVER, that the restrictions contained in this Section 6.20(a)(i) for a period commencing on shall not restrict the Closing Date and expiring on acquisition by the first to occur of (A) a breach by Toymax Sellers' Representative or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingSubsidiaries, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other of less than the Buyer), engaged in the business of marketing or selling any 5% of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the outstanding capital stock of any publicly traded company listed on engaged in a national securities exchange Restricted Business;
(ii) take any action with the intention of diverting from the Company or traded in any controlled Affiliate of the over-the-counter marketCompany any funds or investment accounts with respect to which the Company or any controlled Affiliate of the Company is providing Investment Management Services;
(iii) solicit or attempt to solicit any Person to cease doing business with the Company who, to the knowledge (whether actual knowledge or knowledge that such Restricted Person should have possessed under the circumstances) of such Restricted Person, is or has been a customer, supplier, licensor, licensee or other business relation of the Company at any time (A) up to the date hereof or (B) during the applicable Restricted Period; or
(iv) induce, hire, employ, attempt to hire or employ or solicit any person employed by or providing consulting services to the Company or any of its controlled Affiliates or any person who was employed by or providing consulting services to the Company or any of its controlled Affiliates during the 18 months preceding such hiring or employment or attempted hiring or employment (excluding for all purposes of this Section 6.20(a)(iv), secretaries, drivers and persons holding similar positions).
(b) Each The covenants and undertakings contained in this Section 6.20 relate to matters which are of the Seller a special, unique and ▇'▇▇▇▇▇▇ extraordinary character and their respective Affiliates agree that, after giving effect to the purchase a violation of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Productsterms of this Section 6.20 will cause irreparable injury to the Buyer, the amount of which will be impossible to estimate or determine and which cannot be adequately compensated. Accordingly, the remedy at law for any breach of this Section 6.20 will be inadequate. Therefore, the Buyer will be entitled to an injunction, restraining order or other equitable relief from any court of competent jurisdiction in the event of any breach of this Section 6.20 without the necessity of proving actual damages or posting any bond whatsoever. The rights and remedies provided by this Section 6.20 are cumulative and in addition to any other rights and remedies which the Buyer may have hereunder or at law or in equity.
(c) Except as The parties hereto agree that, if any court of competent jurisdiction in a final nonappealable judgment determines that a specified time period, a specified geographical area, a specified business limitation or any other relevant feature of this Section 6.20 is unreasonable, arbitrary or against public policy, then a lesser time period, geographical area, business limitation or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be required in enforced against the business applicable party.
(d) For the avoidance of doubt, "Restricted Persons" shall not be deemed to include any Person other than the Sellers' Representative and its Subsidiaries and shall not be deemed to include (by way of illustration and not limitation) Trian Fund Management, L.P. or any funds and accounts managed by it, or any other Affiliate of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall Sellers' Representative that is not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that Subsidiary of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereofSellers' Representative.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value 8.6.1 In view of the Assetstransactions contemplated by the terms of this Agreement and the acquisition by the Purchaser of the Goodwill, during the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing on the Closing Date and expiring on ending on: (i) for the first to occur Seller, the later of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction DocumentsMarch 31, which breach is not cured within sixty (60) days after notice thereof from the Seller *** and ▇'▇▇▇▇▇▇, or (B) the date on which is the later of five “Restricted Period” (5as defined in the 2009 BTA) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD")expires and, they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on KRR, the *** anniversary of the Closing Date (or, if not enforceable for the either period stated in (i) and expiring on (ii) in any country under the first Competition-Investment Laws of such country, for such shorter period as shall be enforceable in such country under the Competition-Investment Laws of such country) (the “Restricted Period”), neither KRR nor the Seller shall, and KRR and the Seller shall cause their respective Affiliates (and their respective successors and assigns, including any Person that acquires a majority of the Other Businesses (regardless of whether the transaction is structured as an asset or share transaction)) not to, directly or indirectly: (a) engage in any business anywhere in the world that conducts any Purchaser Competing Activities; or (b) own an interest in, manage, operate, join, control, lend money or render financial or other assistance to occur or participate in or be connected with, as a partner, stockholder, co-venturer, consultant or otherwise, any Person that is engaged or planning to become engaged in the business of [***] Indicates that text has been omitted which is the subject of a confidential treatment request. This text has been separately filed with the SEC. conducting any Purchaser Competing Activities anywhere in the world, provided, however, that, for the purposes of this Clause 8.6.1, none of the following shall be deemed to be in violation of this Clause 8.6.1: (Ai) a breach by Toymax or ownership of securities having no more than 5% (five percent) of the Buyer outstanding voting power of any of their material obligations Person which are listed on any national securities exchange , as long as the Person owning such securities has no other connection or relationship with such Person, (ii) performing activities intended to enable KRR, the Seller or ▇'▇▇▇▇▇▇ under any their respective Affiliates to engage in a business that conducts the Purchaser Competing Activities following the expiration of the Transaction Documents, which breach is Restricted Period provided that the performance of such activities does not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingconstitute, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person breach of (other than the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%a) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of this Clause 8.6.1 as contrasted to the preparation therefor following the expiration of the Restricted Period or (iii) if the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to is acquired in a single transaction or series of related transaction by any Person whose turnover in the purchase last accounting year exceeded USD *** (measured in terms of the Assets at consolidated turnover of such Person and its Affiliates) that conducts (or whose Affiliates conduct) any Purchaser Competing Activities anywhere in the Closingworld (taken together with its Affiliates, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
“Competing Acquiring Persons”) if both (A) influence or attempt to influence any Person (other than employees the Purchaser Competing Activities of the Seller providing consulting services to Buyer at the time Competing Acquiring Persons represent not more than *** of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Products.
(c) Except as may be required in the business of the Buyer after Competing Acquiring Persons (measured in terms of turnover and/or assets in the Closing, last accounting year of the Competing Acquiring Persons) and (B) the Seller does not engage in any business anywhere in the world that conducts any Purchaser Competing Activities following the consummation of such acquisition (it is being agreed and ▇'▇▇▇▇▇▇ understood that for purposes. of this subclause (iii) the Seller shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that deemed an Affiliate of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereofCompeting Acquiring Person).
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Hall acknowledges that as a result of his affiliation with and involvement in the operation of Seller, he is familiar with the trade secrets and other confidential information of Seller and ▇'▇▇▇▇▇▇ acknowledge that in order has significantly and uniquely contributed to assure the Buyer development and maintenance of the goodwill of Seller throughout the States of New Mexico, Oklahoma and Texas (the “Territory”). Hall further acknowledges and agrees that the Buyer will retain Business currently operates and is reasonably expected to operate within the value of Territory. Accordingly, Hall agrees to the Assets, covenants set forth in this Section 4.11 and acknowledges that Purchaser would not have entered into this Agreement but for Hall’s agreement to the Seller and ▇'▇▇▇▇▇▇ agree that:restrictions set forth in this Section 4.11.
(ib) for For a period commencing on of four (4) years from and after the Closing Date and expiring on (the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"“Restricted Period”), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period Hall shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingnot, directly or indirectly, own, operate, lease, manage, control, engage in, invest in, lend to, own any debt or equity security or interest of, permit his name to be used by, act as a director, manager, partner, officerconsultant, employeeor advisor to, consultant render services for or otherwiseto (alone or in association with any Person, own or operate including any business or Personfamily member of Hall), or otherwise become participate or be interested in, or associate with or render assistance to assist any Person (other than the Buyer), Purchaser in any manner in any business that is engaged in the Business anywhere in the Territory (including any business of marketing selling the same or selling any of the Protected Products. The foregoing provisions shall notsimilar products or services); provided, however, that nothing in this Agreement shall (i) prohibit Hall from holding the making Equity Interest or a passive beneficial ownership interest of passive investments of less than five percent (5%) or less of the stock outstanding publicly traded equity securities of any company listed on a national securities exchange entity or traded (ii) prevent Hall from continuing to operate the Water Well Business as currently conducted (or as it may be conducted in the over-the-counter market;future, provided that any such future conduct does not involve the Business).
(bc) Each of During the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Restricted Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retainHall shall not, directly or indirectly, any Person who is and shall cause his Affiliates not to, anywhere in the Territory: (i) hire, engage, or solicit (or attempt any of the foregoing) for employment (or engagement as a consultant) any person who (A) was employed (or engaged as a consultant) by Seller during the twelve (12) months prior thereto wasto Closing, or (B) is or was employed (or engaged as an a consultant) by Purchaser or by its Affiliates (in connection with the Business), or encourage or induce or attempt to encourage or induce any such employee by or consultant to leave such employment or engagement; provided that the Buyer foregoing restriction shall not apply to (x) generalized searches for employees through media advertisements of general circulation, employment search firms, open job fairs or other similar means which are not specifically targeted at such employees or (y) employees who leave the employment of Purchaser or its Affiliates;
, whether voluntarily or involuntarily, provided that such cessation of employment was not the result of any encouragement by Hall or any solicitation otherwise prohibited hereby; (Bii) influence encourage or induce or attempt to influence encourage or induce any Person who is or was within one (1) year prior to Closing a supplier customer, supplier, vendor, licensee, licensor, franchisee, or customer other relation of any of Seller, Purchaser, or any of Purchaser’s Affiliates engaged in the Buyer Business (collectively, the “Company Parties”) to cease doing business or modify the way it does business with Purchaser or its Affiliates, or in any other Person way interfere with whom or otherwise affect the Buyer relationship between any such customer, supplier, licensee, licensor, franchisee, or its business relation of or any of Purchaser’s Affiliates shall have dealt, to terminate engaged in the Business; or modify (iii) solicit any written or oral agreement or course of dealing Company Party for a business competitive with the Buyer Business in the Territory (including any business selling the same products or its Affiliates, services or products and services functionally equivalent to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Productsthose sold by Seller).
(cd) Except as may be required Hall acknowledges that the covenants contained herein are in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar addition to those used currently set forth in any other agreement Hall may enter into with Purchaser and/or its Affiliates and nothing herein is intended to or in shall limit the past covenants contained therein or vice versa. Hall acknowledges that the covenants contained herein are necessary to protect and preserve the trade secrets and other confidential information and goodwill acquired by the Seller uniquely Purchaser in connection with the Funnoodle Product Lineacquisition contemplated by this Agreement and other Transaction Documents.
(e) The Parties hereto acknowledge and agree that Purchaser and each of its Affiliates, successors, and assigns would suffer irreparable harm from a Breach of Section 4.8 or this Section 4.11 and that money damages would not be an adequate remedy for any such Breach. Therefore, in the event a Breach or threatened Breach of Section 4.8 or this Section 4.11, Purchaser and its successors and assigns, in addition to other rights and remedies available at Law or in equity, shall be entitled to specific performance, injunctive, and other equitable relief in order to enforce or prevent any Breach of the provisions of this Agreement. The restrictive covenants set forth in Section 4.8 or this Section 4.11 shall be construed as agreements independent of any other provision in this Agreement, and the existence of any claim or cause of action of any Party against Purchaser, whether predicated upon this Agreement or any other Transaction Document or otherwise, shall not constitute a defense to the enforcement by Purchaser of any restrictive covenant contained in Section 4.8 or this Section 4.11. Purchaser has fully performed all obligations entitling it to the restrictive covenants set forth in Section 4.8 or this Section 4.11, and such use would be in a business competitive with that restrictive covenants therefore are not executory or otherwise subject to rejection under Chapter 11 of Title 11 of the Buyer United States Code.
(f) If the final judgment of a court of competent jurisdiction declares any term or any provision of its Subsidiaries Section 4.8 or Affiliates. As used hereinthis Section 4.11 to be invalid or unenforceable, the phrase "competitive business" means Parties 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 business competitive invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the type intention of business engaged the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified to cover the maximum duration, scope or area permitted by Law. In addition, in the event of an alleged Breach by the Sellerany Party of Section 4.8 or this Section 4.11, the Buyer or any of their Subsidiaries or Affiliates at the date hereofRestricted Period shall be tolled with respect to such Party until such Breach has been duly cured.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ranger Energy Services, Inc.)
Non-Competition; Non-Solicitation. (a) The Seller understands that Buyer shall be entitled to protect and ▇'▇▇▇▇▇▇ acknowledge that in order to assure preserve the Buyer that the Buyer will retain the going concern value of the AssetsBusiness to the extent permitted by Law and that Buyer would not have entered into this Agreement absent the provisions of this Section 7.6 and, therefore, subject to the provisions of this Section 7.6(a), Seller and ▇'▇▇▇▇▇▇ agree thatagrees that for a period of three years from the Closing Date, neither Seller nor any controlled Affiliate of Seller shall, directly or indirectly, engage in any business activity that competes with the Business (each, a “Competitive Activity”); provided, however, that it shall not be deemed to be a violation of this subsection for Seller or any of its Affiliates:
(i) for to invest in any Person which invests in, manages or operates a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax Competitive Activity, so long as Seller’s or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any its Affiliate’s investment is less than 25% of the Transaction Documentsoutstanding ownership interest in such Person and Seller does not, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇directly or indirectly, control such Person or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); andCompetitive Activity;
(ii) to acquire a third party, or one or more lines of business of a third party, that engages in a Competitive Activity by merger or a purchase of shares or assets of a third party so long as the annual Operating Income of such third party attributable to such Competitive Activity for a the most recent fiscal year of such third party preceding the acquisition does not exceed 25% of the aggregate annual Operating Income during such period commencing on for all of the Closing Date and expiring on businesses or operations acquired from such third party; provided, however, that in the first to occur of (A) a breach by Toymax or the Buyer event of any of their material obligations such acquisition where the aggregate annual Operating Income related to the Competitive Activity exceeds 25% of such aggregate annual Operating Income, Seller shall be required to divest such Competitive Activity within 18 months of the acquisition of such Competitive Activity;
(iii) to own any securities through any employee benefit plan;
(iv) to perform any Competitive Activity for the benefit of Buyer or any of its Affiliates as required or contemplated by this Agreement or any Ancillary Agreement; or
(v) to engage in (a) any business conducted by Seller or ▇'▇▇▇▇▇▇ under any of its Affiliates at Closing other than the Transaction DocumentsBusiness, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (Bb) the date which is marketing, packaging or distributing of automotive lubricants, chemicals, appearance products and antifreeze for the later of three automotive and truck after market, and (3c) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") Retained Overlapping Businesses; it being understood and agreed that water guns, tub, sand, bubble Seller and novelty (non-swim and non-pool) water toys its Affiliates shall not be considered Protected Products. permitted to engage in the manufacture, sale and/or provision of process chemicals and additives for scale control, corrosion control or biocides, in each case in boiler or cooling water applications.
(b) Notwithstanding anything to the contrary, the foregoing covenant shall not apply with respect to any Person or its Affiliates that acquires an interest in all or any portion of the stock or assets of Seller or any of its Affiliates and whether or not prior to such acquisition such Person or its Affiliates were already engaged in a Competitive Activity.
(c) Buyer and Seller agree that the covenants included in Section 7.6 (a) and (b) are, taken as a whole, reasonable in their geographic and temporal coverage and are necessary to protect the goodwill of the businesses of the Business and the substantial investment made by Buyer, and Seller shall not raise any issue of geographic or temporal reasonableness in any proceeding to enforce such covenant; provided, however, that if the provisions of Section 7.6 (a) and (b) should ever be deemed to exceed the time or geographic limitations or any other limitations permitted by applicable Law in any jurisdiction, then such provisions shall be deemed reformed in such jurisdiction to the minimum extent required by applicable Law to cure such problem and such provisions shall be enforced with such reforms.
(d) From and after the Closing for a period of two years following the Closing, Seller agrees that neither it nor its Affiliates will, without Buyer’s prior written consent, directly or indirectly (including, without limitation, through Seller’s or its Affiliates’ representatives), solicit for employment (whether as an employee, consultant or temporary employee) any Transferred Employee, except that this paragraph shall not preclude Seller or any other person from entering into discussions with or soliciting any person (i) who responds to any public advertisement or general solicitation or who is contacted by the soliciting party’s recruitment agency (provided that the soliciting party did not instruct such agency to target the other party’s employees or such employee specifically, or (ii) has been terminated by Buyer or its Affiliates three months prior to commencement of discussions with the soliciting party.
(e) From and after the Closing for a period of two years following the Closing, Buyer agrees that neither it nor its Affiliates will, without Seller’s prior written consent, directly or indirectly (including, without limitation, through Buyer’s or its Affiliates’ representatives), solicit for employment (whether as an officer, director, employee, consultant or temporary employee) any officer, director or employee of Seller or any of Seller’s Affiliates, except that this paragraph shall not preclude Buyer or any other person from entering into discussions with or soliciting any person (i) who responds to any public advertisement or general solicitation or who is contacted by the soliciting party’s recruitment agency (provided that the soliciting party did not instruct such agency to target the other party’s employees or such employee specifically), (ii) who initiates discussions with the soliciting party regarding such employment on his or her own initiative and without any direct or indirect solicitation by the soliciting party, its representatives or its Affiliates or (iii) has been terminated by Seller or its Affiliates three months prior to commencement of discussions with the soliciting party.
(f) For purposes of this Section 5.77.6, the term compete shall include acting or participating, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates following terms shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Products.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereof.meanings set forth below:
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Each of Parent and Seller hereby undertakes not to, and ▇'▇▇▇▇▇▇ acknowledge shall procure that its Affiliates shall not, in order to assure any country in which the Buyer that Business is conducted as at the Buyer will retain Closing Date, own, manage, operate, control or otherwise engage, directly or indirectly, in any capacity, in any business which competes with the value of Business as carried out as at the AssetsClosing Date, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from following the Closing Date Date. For the avoidance of doubt, nothing in this Section 8.6(a) will restrict any Person (other than Parent and its Subsidiary Undertakings) or one its Affiliates acquiring (1through share purchase or in a merger or other consolidation) year Parent or all or substantially all of the assets of Parent, from the date the Management Services Agreement is terminated engaging (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not other than through Parent and its Subsidiary Undertakings) in any activities which compete with the Buyer and Business unless such Person or any of its Subsidiaries and Affiliates at the time is engaged in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingany activities which compete, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate any with the formic acid business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer), engaged in the business of marketing or selling any operations of the Protected Products. The foregoing provisions shall notBusiness; provided that, however, prohibit the making of passive investments of five percent nothing in this Section 8.6(a) will restrict BASF or Perstorp or their respective Affiliates acquiring (5%through share purchase or in a merger or other consolidation) Parent or less all or substantially all of the stock assets of any company listed on a national securities exchange or traded in the over-the-counter market;Parent.
(b) Each of the Parent and Seller shall not (and ▇'▇▇▇▇▇▇ shall procure that its Affiliates shall not), whether alone or jointly with another Person and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not whether directly or indirectly, during for three (3) years after the First Covenant Period and Second Covenant PeriodClosing Date, as solicit, seek to entice away from the case may be, for its Business or his own benefit the Target Group or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, hire any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer Business or its Affiliates;
the Target Group in skilled or managerial work as at the Closing Date. Nothing stated above restricts Parent, Seller or their respective Affiliates from (Bi) influence or attempt to influence a supplier or customer of the Buyer or its Affiliatesplacing, or entering into discussions with a Person who replies to a bona fide general recruitment advertisement which is not specifically targeted at those Persons or (ii) hiring any other Person with whom whose employment has been terminated by the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected ProductsTarget Group at least six months earlier.
(c) Except as may be required in Each of Parent and Seller acknowledges (on behalf of itself and its Affiliates) that the business time, scope and other provisions of this Section 8.6 and Section 8.7 have been specifically negotiated by sophisticated commercial parties and specifically hereby agree that such time, scope and other provisions are reasonable under the circumstances and are necessary to induce Purchaser to enter into this Agreement. It is further agreed that other remedies cannot fully compensate Purchaser for a violation by Parent, Seller or their respective Representatives of the Buyer after the Closingterms of this Section 8.6 and Section 8.7 and that Purchaser, the in addition to remedies available at Law, shall be entitled to equitable remedies (including injunctive relief and specific performance) to prevent any such violation or threatened violation or continuing violation by Parent or Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer (or any of their Subsidiaries respective Representatives). It is the intent and understanding of each Party that if, in any proceeding, any term, restriction, covenant, undertaking or Affiliates at promise herein is found to be unreasonable and for that reason unenforceable, then such term, restriction, covenant, undertaking or promise shall be deemed modified to the date hereofextent necessary to make it enforceable.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure During the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing on the Closing Date and expiring ending on the first third anniversary of the Closing Date; Seller will not, and will not permit any of its Affiliates to,
(i) anywhere in the world, directly or indirectly, alone or in association with any Person, own, share in the earnings of, invest in the stock, bonds or other securities of, manage, operate, control, participate in the ownership, management, operation, or control of, finance (whether as a lender, investor or otherwise), or guaranty the obligations of, any Person that is engaged in the design, manufacture, assembly, marketing, sale or distribution of (a) metallic thin wall engine bearings, bushings, or thrust washers, (b) steel or cast iron piston rings, (c) cast iron cylinder liners, or (d) heavy duty steel cam shafts, in each case, for internal combustion engines, transmissions, drivetrains or electric motors, for use in the automotive, commercial vehicle, off-highway or industrial markets or related aftermarkets (a “Competing Activity”); or
(ii) directly or indirectly (i) cause, induce or attempt to occur cause or induce any customer, strategic partner, supplier, distributor, landlord or others doing business with the Business to cease or reduce the extent of its business relationship with the Business or to deal with any competitor of the Business or (ii) in any way interfere with the relationship between the Business on the one hand and any customer, strategic partner, supplier, distributor, landlord or others doing business with the Business on the other hand;
(b) Nothing contained in Section 12.1(a) above shall be construed to prohibit Seller or any of its Affiliates from directly or indirectly:
(i) investing in stock, bonds or other securities of any Person engaged in a Competing Activity (but without otherwise participating in such business), if (A) a breach by Toymax such stock, bonds or other securities are listed on any national securities exchange or have been registered under Section 12(g) of the Buyer Securities Exchange Act of 1934 and (B) such investment does not exceed, in the case of any class of their material the capital stock of any one issuer, 10% of the issued and outstanding shares of such capital stock, or, in the case of bonds or other securities, 10% of the aggregate principal amount thereof issued and outstanding;
(ii) manufacturing and supplying products and goods which are not part of a Competing Activity to competitors of Purchaser;
(iii) after the first anniversary of the Closing Date, acquiring the stock or assets of, or entering into a transaction, joint venture, or other business relationship with respect to a Competing Activity with a Person that engages, directly or indirectly, in a Competing Activity if such Competing Activity accounts for less than the greater of twenty percent (20%) or Fifty Million Dollars ($50,000,000) of such Person’s consolidated annual revenues, and Seller and its Affiliates shall use reasonable best efforts to, or use reasonable best efforts to cause any joint venture partner or Person to, divest any such business segment that engages in such Competing Activity to a Person on terms and conditions that are commercially reasonable within a period of twelve (12) months from the date of such acquisition, transaction, joint venture or other business relationship; or
(iv) performing its obligations to under the Seller or ▇'▇V▇▇▇▇▇ under Reinz Distribution Agreement or any of the Transaction DocumentsTransition Agreements. For purposes of this Agreement, which breach is not cured within sixty the term “participate” includes any direct or indirect interest, whether as partner, sole proprietor, trustee, beneficiary, agent, representative, independent contractor, consultant, advisor, provider of personal services, creditor or owner (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later other than by ownership of less than five percent (5%) years from of the Closing Date or two (2) years from stock of a corporation that has a class of equity securities registered under the date the Management Services Agreement is terminated (such period shall be referred to Securities Exchange Act of 1934, as the "FIRST COVENANT PERIOD"amended), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and.
(iic) for a During the period commencing on the Closing Date and expiring ending on the first to occur second anniversary of (A) a breach by Toymax or the Buyer of Closing Date, Seller will not, and will not permit any of their material obligations to the Seller its Affiliates to, solicit any Acquired Company Employee or ▇'▇▇▇▇▇▇ under Transferred Employee (at a time when such person is an employee of Purchaser or any of the Transaction Documents, which breach is not cured within sixty (60its Subsidiaries) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, to terminate his or (B) the date which is the later of three (3) years from the Closing Date her employment relationship with Purchaser or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participating, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall notits Subsidiaries; provided, however, that nothing herein shall prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Products.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries from advertising publicly or Affiliates. As used herein, the phrase "competitive business" means from employing persons who respond to any business competitive with the type of business engaged in such advertising whether or not such persons are then employed by the Seller, the Buyer Purchaser or any of their its Subsidiaries, or from employing any individual who contacts Seller or any of its Subsidiaries or Affiliates at the date hereofon an unsolicited basis.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Seller As an inducement to Purchaser to execute and ▇'▇▇▇▇▇▇ acknowledge that in order deliver this Agreement and to assure consummate the Buyer that transactions contemplated hereby and to preserve the Buyer will retain goodwill associated with the value of the AssetsBusiness, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from and after the Closing Date or one Date, each of Seller and Parent shall not, and each of Seller and Parent shall cause its respective Subsidiaries (1) year from other than the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"Company Entities), they will including the Retained Subsidiaries (in each case, for so long as such respective Subsidiaries continue to be Subsidiaries of Seller or Parent), not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingto, directly or indirectly, as a partnerengage in, officer, employee, consultant continue in or otherwise, own or operate carry on any business or Person, or otherwise become or be interested in, or associate that competes in any material respect with or render assistance to any Person (other than the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall notBusiness; provided, however, that the foregoing shall not prohibit (x) the making ownership of passive investments the Retained Subsidiaries, and the operation of their respective businesses as currently conducted and proposed to be conducted, or the ownership and operation of the Retained Business; or (y) the ownership of less than five percent (5%) or less of the stock securities of any company corporation or other entity that is listed on a national securities exchange or traded in the national over-the-counter market;. The geographic scope of this covenant not to compete shall extend worldwide. Recognizing the specialized nature of the Business, Parent and Seller acknowledge and agree that the duration, geographic scope and activity restrictions of this covenant not to compete are reasonable.
(b) Each During the period of twenty-four (24) months from and after the Closing Date, each of Seller and ▇'▇▇▇▇▇▇ Parent shall not, and their each of Seller and Parent shall cause its respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person Subsidiaries (other than employees the Company Entities), including the Retained Subsidiaries (subject to the last sentence of the Seller providing consulting services to Buyer at the time of Closingthis Section 6.15(b) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliatesbelow), or employ, consult or otherwise retainnot to, directly or indirectly, including through any other Person, solicit, induce or otherwise offer employment or engagement as an independent contractor to, or hire or engage, any Person who is (or during the twelve (12) months prior thereto was) employed as was an employee by of any Company Entity or Retained Subsidiary who is a Continuing Employee, unless such Person has been separated from his or her employment or other relationship with Purchaser and each of its Affiliates (including the Buyer Company Entities) for a period of at least six (6) consecutive months; provided, however, that the foregoing shall not restrict any Person from making general solicitations of employment in the ordinary course that are not specifically directed to such employees. Seller and Parent shall use their reasonable best efforts to ensure that any successor to all or its Affiliates;
(B) influence or attempt to influence a supplier or customer substantially all of the Buyer equity, business or its Affiliatesassets of any such respective Subsidiaries acquires such equity, business or any other Person with whom assets subject to the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with restrictions set forth in this Section 6.15(b) during such parties in any way; or
twenty-four (C24) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Productsmonth restricted period.
(c) Except as may be required in During the business period of the Buyer twenty-four (24) months from and after the ClosingClosing Date, each of Purchaser and the Seller Company shall not, and ▇'▇▇▇▇▇▇ each of Purchaser and the Company shall cause its respective Affiliates, including the Company Entities, not at any timeto, directly or indirectly, use including through any other Person, solicit, induce or purport to authorize otherwise offer employment or engagement as an independent contractor to, or hire or engage, any Person to use who is or was an employee of Seller, any nameCompany Entity or Retained Subsidiary who is not a Continuing Employee, ▇▇▇▇, logo, trade dress unless such Person has been separated from his or her employment or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection relationship with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer applicable Retained Subsidiary, or an Affiliate of Seller or the applicable Retained Subsidiary, for a period of at least six (6) consecutive months; provided, however, that the foregoing shall not restrict any Person from making general solicitations of their Subsidiaries employment in the ordinary course that are not specifically directed to such employees. This Section 6.15(c) is intended to benefit, and shall be enforceable directly by, each Retained Subsidiary and each successor to all or Affiliates at substantially all of the date hereofequity, business or assets of each Retained Subsidiary.
Appears in 1 contract
Sources: Stock Purchase Agreement (Advanced Energy Industries Inc)
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure For the Buyer that the Buyer will retain the value longer of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(iA) for a period of three (3) years commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is term of the later Purchase Agreement Supplement, none of five Sellers, MyTravel, MyTravel Canada or any of their subsidiaries or Affiliates shall directly or indirectly (5i) years from engage in competition with Purchasers using the same gateways used by Sellers as of the Closing Date or two (2ii) years from have an ownership interest in, any person, firm, corporation, association or other enterprise that is directly or indirectly engaged in conducting public charter operations using the date same gateways used by Sellers as of the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats Closing Date (the "FIRST PROTECTED PRODUCTSRestricted Activity"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax provided, however, that nothing contained in this Section 6.10 shall prohibit Sellers, MyTravel, MyTravel Canada or the Buyer of any of their material obligations to subsidiaries or Affiliates from owning, in the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documentsaggregate, which breach is not cured within sixty (60x) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three percent (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participating, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the any class of capital stock or other equity interest of any company engaged in any Restricted Activity that has securities listed on a national or regional securities exchange or traded in the over-the-counter market;market or (y) one percent (1%) or less of any class of capital stock or other equity interest of any other business enterprise engaged in any Restricted Activity. In connection with the foregoing, (i) each Purchaser hereby represents that the limitations set forth herein are reasonable and are properly required for the adequate protection of the Business and (ii) each of Sellers, MyTravel and MyTravel Canada hereby acknowledges and agrees to the foregoing.
(b) Each For the longer of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person a period of three (other than employees of 3) years commencing on the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
Closing Date and (B) influence or attempt to influence a supplier or customer the term of the Buyer or its AffiliatesPurchase Agreement Supplement, or any other Person with whom the Buyer or its Affiliates shall have dealtnone of Sellers, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its AffiliatesMyTravel, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Products.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer MyTravel Canada or any of their Subsidiaries subsidiaries or Affiliates at shall directly or indirectly induce or attempt to induce any Transferred Employee or other employee of a Purchaser to leave the date hereofemploy of such Purchaser, or in any way interfere with the relationship between such Purchaser and any Transferred Employee or other employee thereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (Eresource Capital Group Inc)
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇As a necessary measure to ensure that ▇▇▇▇▇ acknowledge that in order to assure realizes the Buyer that the Buyer will retain the value goodwill and associated benefits of the AssetsTransactions, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date Closing Date, none of the Management Services Agreement is terminated Sellers nor Congo shall, and each of them shall cause its respective Affiliates not to, directly or indirectly, invest in, acquire, own, manage, control, operate or otherwise engage in [***] (such period shall be referred to as collectively, the "FIRST COVENANT PERIOD"“Restricted Business”), they will not compete with in each case within the Buyer and its Subsidiaries and Affiliates at United States or any other geographic region in which the time in question, in connection with Business is conducted as of the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); andClosing Date.
(iib) for a period commencing on Nothing in Section 6.31(a) or any other provision of this Agreement or any other Transaction Agreement shall operate to restrict the Closing Date and expiring on the first to occur of (A) a breach by Toymax Sellers or the Buyer of Congo, or any of their material obligations their
(c) As a necessary measure to the Seller or ▇'▇ensure that ▇▇▇▇▇ under any realizes the goodwill and associated benefits of the Transaction DocumentsTransactions, which breach is not cured within sixty for a period of two (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (32) years from following the Closing Date or one (1) year from Date, without the date prior written consent of Buyer, none of the Management Services Agreement is terminated (such period Sellers nor Congo shall, and each of them shall be referred to as the "SECOND COVENANT PERIOD"), they will cause their respective Affiliates not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingto, directly or indirectly, as a partnerhire, officeremploy, employee, consultant offer employment to or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than solicit the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock employment of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree thatOffered Employee who, after giving effect to the purchase of the Assets at following the Closing, it is or he will not directly was employed by Buyer or indirectlyany of its Affiliates (including the Company and its Subsidiaries). Notwithstanding the foregoing, during nothing in this Section 6.31(c) shall (i) apply to the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit solicitation of any other Person:
person through general solicitations through media advertisements or to the solicitation of any person through employment search firms in the ordinary course of business so long as such searches are not specifically targeted at such employees or (ii) prohibit the hiring of (A) influence or attempt any person who responds to influence any Person such solicitation set forth in clause (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliatesi), or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt any person who has ceased to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the be employed by Buyer or its Affiliates shall have dealt, (including the Company and its Subsidiaries) for at least six (6) months prior to terminate such hiring or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Products.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past person who was terminated by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries Affiliates (including the Company and its Subsidiaries) without cause.
(▇) ▇▇▇▇▇ acknowledges and agrees that the restraints imposed by this Section 6.31 are fair and reasonably required for the protection of the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the Transactions. If the final judgment of a court of competent jurisdiction declares that any term or Affiliates. As used hereinprovision of this Section 6.31 is invalid or unenforceable, the phrase "competitive business" means Parties 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 business competitive invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the type intention of business engaged the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified.
(e) Buyer acknowledges that (i) the covenants contained in this Section 6.31 are being made by each Seller and Congo separately and (ii) neither Seller nor Congo shall be responsible for any breach of the Seller, the Buyer or covenants contained in this Section 6.31 by any of their Subsidiaries or Affiliates at the date hereofother Person.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Celsius Holdings, Inc.)
Non-Competition; Non-Solicitation. (a) The Seller In furtherance of the transactions contemplated hereby and more effectively to protect the value and goodwill of the assets and businesses of the Company, each of the Seller, H▇'▇▇▇ ▇▇▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value of the Assets, the Seller S▇▇▇▇▇ and D▇'▇▇▇ ▇. ▇▇▇▇▇▇▇▇ agree covenants and agrees that, for a period ending on the fifth anniversary of the Closing Date, such Person shall not:
(i) directly or indirectly own, manage, operate, control, participate in, perform services for or otherwise carry on, a period commencing on business competitive with the businesses conducted by the Company as of the Closing Date anywhere in the world (it being understood by the parties hereto that the businesses conducted by the Company are not limited to any particular region of the world and expiring that the businesses conducted by the Company may be engaged in effectively from any location in the world); or
(ii) directly or indirectly, either on the first to occur of (A) a breach by Toymax such Person’s own behalf or the Buyer on behalf of any other Person, induce or attempt to persuade any supplier or customer of their material obligations the Company to terminate or modify its business relationship with the Seller or Company; provided, however, that nothing set forth in Section 5.4(a) shall prohibit the Seller, H▇'▇▇▇ ▇▇▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller S▇▇▇▇▇ and D▇'▇▇▇ ▇. ▇▇▇▇▇▇▇▇, respectively, from owning not in excess of 2% in the aggregate of any class of capital stock of any corporation if such stock is publicly traded and listed on any national or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); andregional stock exchange.
(iib) In furtherance of the transactions contemplated hereby and more effectively to protect the value and goodwill of the assets and businesses of the Company, each of the Seller and each Seller Member covenants and agrees, severally and not jointly, that, for a period commencing ending on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any fifth anniversary of the Transaction DocumentsClosing Date, which breach is not cured within sixty such Person (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in questionand, in connection with the following products: toy sprinklerscase of Riverside Fund III, water slides L.P., its affiliated funds, general partner and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS"management company) (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes hire any employee of this Section 5.7the Company prior to his or her termination by the Company, the term compete shall include acting or participatingor, directly or indirectly, as a partnersolicit, officer, employee, consultant induce or otherwise, own encourage any employee of the Company to terminate his or operate her employment with the Company or to accept employment with any business or other Person, or otherwise become cooperate with any others in doing or be interested inattempting to do so. As used herein, the term “solicit, induce or encourage” includes (i) initiating communications with an employee of the Company relating to possible employment, or associate (ii) offering bonuses or additional compensation to encourage any employee of the Company to terminate his or her employment with the Company and accept employment with any other Person.
(c) The parties acknowledge and agree that the restrictions contained in this Section 5.4 are reasonable (including as to scope, time and area), not unduly restrictive of Seller’s and the Seller Members’ rights, supported by adequate consideration and necessary protection of the immediate interests of Buyer, and any violation of these restrictions would cause immediate and irreparable injury to Buyer for which there would be no adequate monetary damages. In the event of a breach or render assistance a threatened breach by Seller or any Seller Member, such Person acknowledges and agrees that Buyer shall be entitled to an injunction restraining such Seller or Seller Member from such breach or threatened breach without the requirement of posting bond, in addition to any Person (other than remedy to which Buyer may be entitled at law or in equity. In addition, the Buyer)parties acknowledge and agree that the restrictions contained in this Section 5.4 are essential elements of this Agreement and that but for these restrictions, engaged in Buyer would not have agreed to enter into this Agreement and the business transactions contemplated hereby, and Seller and each Seller Member agrees not to challenge the validity or importance of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of such restrictions applicable to the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree thator such Member. If any court determines that any provision of this Section 5.4 is unenforceable, after giving effect such court will have the power to reduce the purchase duration or scope of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Periodsuch provision, as the case may be, for its or his own benefit or for terminate such provision until, in such reduced form, such provision shall be enforceable. It is the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees intention of the Seller providing consulting services parties hereto that the foregoing restrictions shall not be terminated, unless so terminated by a court, but shall be deemed amended to Buyer at the time extent required to render them valid and enforceable, such amendment to apply only with respect to the operation of Closing) to either terminate or modify such Person's employment or other professional relationship with this Section 5.4 in the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer jurisdiction of the Buyer or its Affiliates, or any other Person with whom court that has made the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Productsadjudication.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereof.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇To accord the Parent the full value of the transactions contemplated hereby, for a period of three (3) years after the Closing, none of M▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, C▇▇▇▇▇▇ ▇▇▇▇▇▇, J▇▇▇▇▇ ▇▇▇▇▇▇, C▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust or J▇▇▇▇▇ ▇▇▇▇▇▇ Trust (each, a “Restricted Person”) shall, and each of them shall cause any entities which they control not to, directly or indirectly:
(i) as an individual proprietor, partner, stockholder, officer, executive, director, joint venturer, investor or in any other capacity whatsoever (except in all cases in a capacity solely as a passive investor), engage in any business involving (A) Italian motif quick service restaurants, Italian quick casual restaurants or Italian casual restaurants or (B) that otherwise competes with the business conducted by the Company and the Company Subsidiaries (other than the business conducted by the Withdrawn Assets) as conducted on the Closing Date; provided that (i) the foregoing shall not prohibit or restrict the ability of any Stockholder or Affiliates thereof to act as a Franchisee of the Company or any Company Subsidiary pursuant to a Franchise Agreement, (ii) the foregoing shall not prohibit or restrict the ability of any Restricted Person or Affiliate thereof to engage in the business conducted by the Withdrawn Assets as conducted on the date which is hereof, and (iii) the later foregoing shall not prohibit or restrict the ability of any Restricted Person or Affiliate thereof to own or operate coffee shops, Cosi-type sandwich shops or similar establishments, as long as such establishments do not predominantly serve any of the featured Italian entree menu items (including pizza) that are served at Sbarro restaurants;
(ii) induce or attempt to induce to leave the employ of the Company and/or any Company Subsidiary, or solicit, employ, hire or engage, or attempt to employ, hire or engage, any of the individuals listed on Schedule 5.16(a)(ii) of the Company’s Disclosure Schedule; provided that neither (i) generalized searches through media advertisement or employment firms in each case that are not directed to such personnel nor (ii) solicitation of such individuals following their termination of employment or notification of termination of employment shall constitute a violation of the foregoing.
(b) The Stockholders recognize that, by reason of their ownership of the Company and their participation in the operation of the business of the Company and the Company Subsidiaries, they have acquired confidential information and trade secrets concerning the operation of such business. Accordingly, each Stockholder agrees that it will not for a period of three (3) years from after the Closing Date Closing, except in the performance of its obligations to the Parent under this Agreement or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at prior written consent of the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingParent, directly or indirectly, disclose confidential information relating to the Company, the Company Subsidiaries or their respective businesses that it may learn or has learned (including as a partnerresult of having access to the books and records of the Company as set forth in Section 5.6 hereof) by reason of its ownership of the Company and their participation in the operation of the business of the Company and the Company Subsidiaries, officer, employee, consultant unless (i) such information is or otherwise, own becomes generally available to the public other than as a result of disclosure by any Stockholder or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person of their Affiliates (other than the BuyerCompany and the Company Subsidiaries), engaged (ii) disclosure of such information is required by applicable law or (iii) with respect to a Stockholder who remains an employee of Surviving Corporation or its Affiliates following the Closing, such information is used in the business performance of marketing or selling any his duties as an employee of Surviving Corporation.
(c) To accord the Parent the full value of the Protected Products. The foregoing provisions shall nottransactions contemplated hereby, howeverfollowing the Closing, prohibit the making of passive investments of five percent (5%) or less and notwithstanding anything contained herein, none of the stock of any company listed on a national securities exchange Restricted Persons shall, directly or traded in the over-the-counter market;indirectly:
(bi) Each of the Seller and ▇'▇use any S▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to ▇▇▇▇ as the purchase name (or part of the Assets at the Closingname) of, it or he will not directly or indirectlyotherwise as a M▇▇▇ in connection with, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence restaurant services or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliatesfood services, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, food products or any business that produces, distributes or sells any food products, including any frozen foods or sauces (for the avoidance of doubt, food products shall not include cookware, utensils or other Person with whom the Buyer or its Affiliates shall have dealt, non-food items that may relate to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any wayfood); or
(Cii) influence disparage the Company, any Company Subsidiary or attempt any Person known by such Restricted Person to influence be a supplier or customer Franchisee of the Buyer Company or its Affiliatesany Company Subsidiary. For the avoidance of doubt, and without in any way limiting any of the provisions contained herein, including any of the Restricted Persons’ obligations set forth above in this Section 5.16(c), nothing contained in this Section 5.16(c) shall limit the rights of the Company or of any of the Restricted Persons to enforce a M▇▇▇ to the full extent permitted under applicable laws (including the right to assert any claim of infringement or unfair competition or any other claim or action permitted under applicable laws), if and to the extent such Person with whom has any rights under applicable laws to enforce such M▇▇▇.
(d) For the Buyer or its Affiliates shall have dealtavoidance of doubt, for the purpose of offering or selling and without in any way limiting any of the Protected Products.
(c) Except as may be required in the business provisions contained herein, including any of the Buyer after Restricted Persons’ obligations set forth in Section 5.16(c), nothing contained in this Section 5.16(d) shall restrict any of the ClosingRestricted Persons from (i) using his or her name to identify himself or herself acting in his or her capacity as an individual, or (ii) using the Seller and ▇'▇S▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇▇ in a descriptive, logo, trade dress historical or other identifying words or images which are similar non-trademark manner; provided that, for the same as or similar avoidance of doubt, the foregoing shall be subject to those used currently or in the past by Restricted Persons’ obligations under Section 5.16(c)(ii).
(e) The parties hereto agree that if any court of competent jurisdiction determines that the Seller uniquely in connection with the Funnoodle Product Lineduration, whether or not such use would be in a business competitive with that of the Buyer scope or any other feature of its Subsidiaries this Section 5.16 is unreasonable, arbitrary or Affiliates. As used hereinagainst public policy, then a lesser duration, scope or other relevant feature which is determined by such court to be reasonable, not arbitrary and not against public policy may be enforced against the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereofapplicable party.
Appears in 1 contract
Sources: Merger Agreement (Sbarro Inc)
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for For a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from following the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD")Date, they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participating, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions Sellers shall not, howeverand shall cause their respective Subsidiaries and controlled Affiliates not to, prohibit engage in any business in the making United States and Canada providing printing, mailing, postage and mailing operations management and physical fulfillment services of passive investments the type conducted by the Business as of the date hereof generating more than five percent (5%) or less of the stock annual gross revenues of Sellers and their Subsidiaries (taken as a whole) (such operations, the "Prohibited Activities"). Additionally, during such five (5) year period following the Closing Date, Sellers shall not (i) solicit any company listed on a national securities exchange then-current customers of the Business with regard to any of the Prohibited Activities, or traded (ii) provide or offer to provide, alone or in combination with other services, any services constituting any of the over-the-counter market;Prohibited Activities to any prospective customer of the Sellers.
(b) Each Notwithstanding the foregoing, the parties agree that nothing herein shall prohibit Sellers or their respective Subsidiaries from: (i) acquiring or investing in any Person, or the assets thereof, if less than ten percent (10%) of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree thatgross revenue, after giving effect to the purchase net revenue or assets of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any such Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify based on such Person's employment latest annual audited consolidated financial statements) are related to or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling were derived from any of the Protected Products.
Prohibited Activities; (cii) Except as may be required acquiring or investing in any Person, or the business assets thereof, if ten percent (10%) or more than ten percent (10%) of the Buyer after gross revenue, net revenue or assets of such Person (based on such Person's latest annual audited consolidated financial statements) are related to or were derived from any of the ClosingProhibited Activities; provided, that, within one year of such acquisition, Sellers or their respective Subsidiaries enter into a definitive agreement to divest themselves of all or substantially all of the Seller assets or operations so acquired that are engaged in any of the Prohibited Activities (and ▇'▇▇▇▇▇▇ shall use commercially reasonable efforts to consummate such transaction as soon as reasonably practicable thereafter); (iii) acquiring or investing in securities representing not at any time, directly or indirectly, use or purport to authorize more than five percent (5%) of the outstanding voting power of any Person to use engaged in any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereof.Prohibited Activities; or
Appears in 1 contract
Sources: Purchase Agreement (Broadridge Financial Solutions, Inc.)
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value of the AssetsExcept as permitted by Section 5.9(b), the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from after the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period Date, Parent and Seller shall be referred to as the "FIRST COVENANT PERIOD")not, they will and each shall cause its Controlled Affiliates not compete with the Buyer and its Subsidiaries and Affiliates at the time in questionto, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingengage, directly or indirectly, as a partnerin the Territory, officerin the Covered Business.
(b) Notwithstanding the provisions set forth in Section 5.9(a), employeeParent, consultant Seller and the Affiliates of each are permitted at any time to:
(i) engage in the Retained Businesses and any reasonable expansion thereof;
(ii) acquire any portion of the assets or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to Equity Interests of any Person (other than the Buyer), engaged in the business of marketing or selling any Covered Business so long as the Covered Business accounts for less than fifty percent (50%) of the Protected Products. The foregoing provisions shall notrevenues of such Person (based on the latest available, howeverrelevant annual financial statements);
(iii) acquire, prohibit the making of passive investments of hold or own, directly or indirectly, not more than five percent (5%) or less of the stock a class of any company securities listed on a national or international securities exchange or traded issued by any Person engaged in the over-the-counter marketCovered Business;
(biv) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree thatacquire, after giving effect to the purchase of the Assets at the Closing, it hold or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retainown, directly or indirectly, any Equity Interests or any securities convertible into any Equity Interests of any Person who is (engaged in the Covered Business received by Parent, Seller or during the twelve (12) months prior thereto was) employed any Affiliate of either as an employee by the Buyer consideration for or its Affiliates;otherwise in connection with a disposition or other strategic transaction; and
(Bv) influence perform their obligations or attempt to influence a supplier or customer of exercise their rights under this Agreement and the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected ProductsAncillary Agreements.
(c) Except as may be required in the business For a period of the Buyer two (2) years after the ClosingClosing Date, the Parent and Seller shall not, and ▇'▇▇▇▇▇▇ each shall cause its Controlled Affiliates not at any timeto, directly or indirectly, use (i) solicit or purport to authorize recruit for employment any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past individual that is then employed by the Seller uniquely in connection Company, or (ii) induce or attempt to induce any employee of the Company to terminate or sever his or her employment with the Funnoodle Product LineCompany. Notwithstanding the foregoing, whether nothing in this Agreement shall prevent Parent or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer Seller or any of their Subsidiaries respective Affiliates from: (A) soliciting any employee for employment with respect to any public advertisement or posting or other form of general solicitation that is not specifically directed at such employees of the Company or as is conducted by search firms not directed by Parent, Seller or either’s Affiliates at to target such employees of the date hereofCompany or hiring any employees who contact Parent, Seller or any of their Affiliates in response to any such general solicitation; or (B) soliciting any employee who is terminated by the Company following the Closing.
(d) Buyer hereby acknowledges and agrees, on behalf of itself and each of its Affiliates (including, following the Closing, the Company) that any restrictive covenants contained in agreements between the Company, on the one hand, and Parent, Seller or any of their Affiliates (other than the Company), on the other hand, will automatically lapse and be of no further effect with respect to any portion of the Retained Businesses in which Parent, Seller or their Affiliates no longer own a controlling interest.
(e) Following the Closing, if any Person that as of the Closing was a Controlled Affiliate of Parent or Seller subsequently ceases to be a Controlled Affiliate, such Person will (automatically and without the need for any further action) no longer be subject to the restrictive covenants set forth in this Section 5.9.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for For a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from after the Closing Date or two (2) years from Date, the date the Management Services Agreement is terminated (such period Seller shall be referred to as the "FIRST COVENANT PERIOD")not, they will and shall not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of permit any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingto, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested invest in, own, manage, operate, finance, control, advise, render services to or associate with or render assistance to guarantee the obligations of any Person (other than the Buyer), engaged in or planning to become engaged in the business of marketing or selling any of Business in the Protected Products. The foregoing provisions shall notUnited States; provided, however, prohibit that, in addition to the making acquisition of passive investments of the Payment Shares and any Escrow Shares, if applicable, the Seller may purchase or otherwise acquire up to (but not more than) five percent (5%) or less of any class of the stock securities of any company Person (but may not otherwise participate in the activities of such Person) if such securities are listed on a any national or regional securities exchange or traded in have been registered under Section 12(g) of the over-the-counter market;Exchange Act.
(b) Each For a period of five (5) years after the Closing Date, the Seller shall not, and ▇'▇▇▇▇▇▇ and their respective shall not permit any of its Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retainto, directly or indirectly, :
i. solicit the business of any Person who is (a customer of the Purchaser or during the twelve (12) months prior thereto was) employed as an employee by Company Group for the Buyer or its Affiliatespurposes of offering products and services that are competitive with the Business;
(B) influence ii. cause, induce or attempt to influence a cause or induce any customer or supplier or customer of any member of the Buyer Company Group on the Closing Date or its Affiliates, or any other Person with whom within the Buyer or its Affiliates shall have dealt, year preceding the Closing Date to terminate or modify any written or oral agreement or course of dealing cease doing business with the Buyer Purchaser or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any wayCompany Group; or
(C) influence iii. hire, retain or attempt to influence a supplier or customer hire any employee of the Buyer Purchaser or its Affiliatesthe Company Group; provided, that nothing shall prevent the Seller from hiring (i) any former employee of the Purchaser or the Company Group who has not been employed by the Purchaser or the Company Group for at least the later of six (6) months after the Closing or six (6) months after the employee was terminated or (ii) any other Person with who responds to a general solicitation of employment that is not targeted or directed at any employees of the Purchaser or the Company Group. Notwithstanding the foregoing, Seller shall not be prohibited from hiring the Business Employees to whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any Purchaser has not offered employment as of the Protected ProductsClosing.
(c) Except as may The Seller acknowledges that a breach or threatened breach of this Section 6.13 would give rise to irreparable harm to Purchaser, for which monetary damages would not be required an adequate remedy, and hereby agrees that in the business event of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly a breach or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past a threatened breach by the Seller uniquely of any such obligations, the Purchaser shall, in connection with addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to 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 (without any requirement to post bond).
(d) The Seller acknowledges that the Funnoodle Product Line, whether or not such use would be restrictions contained in a business competitive with that this Section 6.13 are reasonable and necessary to protect the legitimate interests of the Buyer Purchaser and constitute a material inducement to the Purchaser to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 6.13 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 Laws. The covenants contained in this Section 6.13 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of its Subsidiaries any such covenant or Affiliates. As used hereinprovision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, the phrase "competitive business" means and any business competitive with the type of business engaged such invalidity or unenforceability in by the Seller, the Buyer any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any of their Subsidiaries or Affiliates at the date hereofother jurisdiction.
Appears in 1 contract
Sources: Equity Purchase and Sale Agreement (Smart Sand, Inc.)
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge agrees that in order to assure during the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing beginning on the Closing Date and expiring ending on the first third anniversary of the Closing Date it will not, and it will not permit any of its Subsidiaries to: (i) control (within the meaning of the BHC Act, including the rules and regulations promulgated thereunder, or any successor provision) any insured depositary institution with its headquarters located within Puerto Rico, (ii) open or operate a branch of Seller, or of any Subsidiary of Seller, in Puerto Rico that engages in banking, insurance or broker-dealer activities or (iii) actively market banking, securities brokerage or insurance products and services to occur of Persons in Puerto Rico (other than (A) as a breach by Toymax result of worldwide or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documentsregion wide general media advertising not aimed primarily at Persons in Puerto Rico, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) to any Person or any of its Affiliates to whom Seller or any of its Affiliates has provided products or services prior to the date which is the later hereof and (C) to any Person or any of five (5) years from the Closing Date its Affiliates to whom Seller or two (2) years from any of its Affiliates first provides products or services after the date the Management Services Agreement is terminated (such period shall be referred to hereof so long as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, marketing in connection with the following products: exercise first products and play mats, foam swim toys, foam pool toys services provided was not primarily directed to providing products and foam floats services in Puerto Rico) (the "FIRST PROTECTED PRODUCTS"activities referenced in clauses (i); and
, (ii) and (iii), the “Prohibited Activities”); provided that nothing herein will prevent Seller or any of its Subsidiaries from acquiring, and thereafter owning, any entity or business (such entity or business, the “Acquired Business”) that directly or indirectly engages in any of the Prohibited Activities so long as, at the time of the acquisition, the Prohibited Activities account for a less than 20% of the value (as determined in good faith by the board of directors of Seller) of the Acquired Business.
(b) Seller agrees that during the period commencing beginning on the Closing Date and expiring ending on the first to occur anniversary of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD")it will not, they and it will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participating, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer), engaged in the business of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retain, directly or indirectly, any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Products.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or permit any of its Subsidiaries to, solicit for employment or Affiliatesemploy any person who was in a senior vice president or more senior position with any of the Companies on the Closing Date; provided that (i) the foregoing shall not apply to the Excepted Employees, (ii) nothing herein shall apply to any person who has left the employment of the Companies other than as a result of a breach of this provision and (iii) the non-solicitation restrictions of this paragraph shall not apply to any general solicitations for employment, such as any newspaper or Internet help wanted advertisement, or any search firm engagement which, in any such case, is not directed or focused on personnel employed by the Companies. As used herein, the phrase "competitive business" term “Excepted Employees” means any business competitive with the type persons set forth in Section 7.06(b) of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereofSeller Disclosure Schedules.
Appears in 1 contract
Sources: Acquisition Agreement (Oriental Financial Group Inc)
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value In view of the Assetstransactions contemplated by the terms of this Agreement and the acquisition by Purchaser of the goodwill, during the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing on the Closing Date and expiring ending on the first to occur eighth (8th) anniversary of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (or, if not enforceable for such period in any country under the Competition/Investment Laws of such country, for such shorter period as shall be referred to as enforceable in such country under the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur Competition/Investment Laws of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS"country) (the First Protected Products “Restricted Period”), neither Promoter Group nor Seller shall, and the Second Protected Products collectivelyPromoter Group and Seller shall cause their respective Affiliates (and their respective successors and assigns (whether by operation of law or otherwise)), the "PROTECTED PRODUCTS") it being understood and agreed that water gunsother than, tubexcept as otherwise expressly provided below in Section 10.6(b), sanda Competing Acquiring Person, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingto, directly or indirectly: (i) engage in any business that conducts any Purchaser Competing Activities in India and/or any Emerging Market; or (ii) own an interest in, manage, operate, join, control, lend money or render financial or other assistance to or participate in, as a partner, officerstockholder, employeeco-venturer, consultant or otherwise, own any Person that is engaged in the business of conducting any Purchaser Competing Activities in India and/or any Emerging Market; provided, however, ownership of securities having no more than five percent (5%) of the outstanding voting power of any Person which is listed on any public securities exchange shall not be deemed to be in violation of this Section 10.6(a) as long as the Person owning such securities has no other control or operate relevant influence in respect of such Person. If requested by Purchaser at any business or Persontime during the Restricted Period, Seller shall promptly (and no later than ten (10) Business Days following receipt of such request from Purchaser) deliver to Purchaser a certificate executed by an authorized representative of Seller in form and substance reasonably satisfactory to Purchaser certifying the compliance by Promoter Group, Seller and their respective Affiliates with the terms of this Section 10.6(a).
(b) Seller hereby covenants that if Seller sells or otherwise become divests (regardless of whether the transaction is structured as an asset transaction, share transaction or be interested inin any other manner) all or a substantial portion of any of the Other Businesses (each, or associate with or render assistance a “Divested Competing Business”) to any Person (other than the Buyer), engaged in the business an Affiliate of marketing or selling Seller) that conducts any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of five percent (5%) or less Purchaser Competing Activities in India and/or any of the stock of Emerging Markets (any company listed on a national securities exchange or traded in the over-the-counter market;
(b) Each of the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any such Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship together with the Buyer and/or its Affiliates, the “Competing Acquiring Person”), then the Contract pursuant to which Seller and or employ, consult its Affiliates sells or otherwise retaindivests any Divested Competing Business shall include a covenant in favor of the Purchaser pursuant to which the Competing Acquiring Person shall agree (i) not to use, directly or indirectly, the Divested Competing Business to conduct any Person who is (or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties Purchaser Competing Activities in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling India and/or any of the Protected Products.
(c) Except as may be required in the business of the Buyer after the ClosingEmerging Markets, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereof.and
Appears in 1 contract
Non-Competition; Non-Solicitation. Executive and the Company agree that the non-competition and non-solicitation provisions of this Article VII are a material inducement for the Company to employ Executive and that this Article VII is necessary to protect the trade secrets and other Confidential Information of the Company or its affiliates disclosed or entrusted to Executive by the Company or its affiliates or created or developed by Executive for the Company or its affiliates, and to protect the business goodwill of the Company or its affiliates (including Nine Energy) developed through the efforts of Executive and/or the business opportunities disclosed or entrusted to Executive by the Company or its affiliates.
(a) The Seller Subject to the exceptions set forth in Section 7.2(b) and ▇'▇▇▇▇▇▇ acknowledge 7.2(d) below, Executive expressly covenants and agrees that in order to assure during the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
Prohibited Period (i) for a period commencing Executive will refrain from carrying on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingengaging in, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate any business similar to that of Nine Energy or Personany of its subsidiaries in the Restricted Area. Accordingly, Executive covenants and agrees that she will not, and Executive will cause Executive’s affiliates not to, directly or indirectly, own, manage, operate, join, become an employee of, partner in, owner or member of (or an independent contractor to), control or participate in, be connected with or loan money to, sell or lease equipment or property to, or otherwise become be affiliated with any business, individual, partnership, firm, corporation or be interested inother entity which constitutes a Competing Business in the Restricted Area, as Executive expressly agrees that each of the foregoing activities would represent carrying on or associate with engaging in a business similar to (or render assistance to any Person the same as) Nine Energy or its subsidiaries, as prohibited by this Section 7.2(a).
(other than b) Notwithstanding the Buyerrestrictions contained in Section 7.2(a), engaged in the business of marketing Executive or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making Executive’s affiliates may own an aggregate of passive investments of five percent (5%) or less not more than 2% of the outstanding stock of any company class of any corporation that is a Competing Business, if such stock is listed on a national securities exchange or regularly traded in the over-the-counter market;
(b) Each market by a member of a national securities exchange, without violating the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree thatprovisions of Section 7.2(a), after giving effect to provided that neither Executive nor any of Executive’s affiliates has the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retainpower, directly or indirectly, to control or direct the management or affairs of any Person who such corporation and is (or during not involved in the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer management of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Productscorporation.
(c) Except as may be required in Executive further expressly covenants and agrees that during the business Prohibited Period, Executive will not, and Executive will cause Executive’s affiliates not to (i) engage or employ, solicit or contact with a view to the engagement or employment of, or recommend or refer to any person or entity (other than the Company or one of its affiliates) for engagement or employment any person who is an officer or employee of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer Company or any of its Subsidiaries affiliates or Affiliates. As used herein(ii) canvass, solicit, approach or entice away or cause to be canvassed, solicited, approached or enticed away from the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer Company or any of their Subsidiaries its affiliates any person or Affiliates at entity who or which is a customer of any of such entities during the date hereofperiod during which Executive is employed by the Company.
(d) Notwithstanding the above-referenced limitations in Sections 7.2(a) and 7.2(c)(ii) above, such limitations shall not apply in those portions of the Restricted Area located within the State of Oklahoma. Instead, Executive agrees that the restrictions on Executive’s activities within those portions of the Restricted Area located within the State of Oklahoma (in addition to those restrictions set forth in Section 7.2(c)(i) and Article V above) shall be as follows: during the Prohibited Period, Executive will not directly or indirectly solicit the sale of goods, services, or a combination of goods and services from the established customers of Nine Energy or its subsidiaries.
(e) Before accepting employment with any other person or entity while employed by the Company or during the Prohibited Period, Executive will inform such person or entity of the restrictions contained in this Article VII.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Seller Each of the Parent, Pilot, Meribel and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the Buyer Quiksilver Americas hereby acknowledges that the Buyer will retain agreements and covenants contained in this Section 6.4 are essential to protect the value of the Assets, Business being acquired by the Seller Purchaser Parties and ▇'▇▇▇▇▇▇ agree that:
serve as an inducement for the Purchaser Parties to enter into this Agreement. During the period (ithe “Restricted Period”) for a period commencing on the Closing Date and expiring ending on the first to occur third anniversary of the Closing Date, except as contemplated by the Transition Services Agreement, the Parent shall not, and shall cause its Affiliates (Aincluding Pilot, Meribel and Quiksilver Americas) not to, directly or indirectly conduct or otherwise engage or participate (whether for itself or through or on behalf of or in conjunction with any Person, as an agent, consultant, shareholder, director (or Person in a breach similar position), officer, member, manager, partner, joint venturer, investor or in any other capacity or otherwise) in any Winter Sports Hardgoods Activity in any geographic area in which any Acquired Company directly or indirectly conducts or engages in Winter Sports Hardgoods Activities as of the Closing Date; provided, however, that: (i) the foregoing shall not prohibit the acquisition and ownership by Toymax the Parent or the Buyer of any of their material obligations its Affiliates of equity securities of a publicly traded company in an amount not to the Seller or ▇'▇▇▇▇▇▇ under any exceed 2% of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller issued and ▇'▇▇▇▇▇▇, or (B) the date which is the later outstanding shares of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer company; and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date foregoing shall not prohibit the acquisition, ownership and expiring on operation by the first to occur of (A) a breach by Toymax Parent or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingAffiliates, directly or indirectly, as of a partnergroup of companies (collectively, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other a “Competing Business”) in which the Winter Sports Hardgoods Activities represent no more than the Buyer), engaged in the business greater of marketing or selling any of the Protected Products. The foregoing provisions shall not, however, prohibit the making of passive investments of (A) five percent (5%) or less of the stock consolidated revenues of such Competing Business for its fiscal year immediately preceding such acquisition or the commencement of such ownership or operations by the Parent or any of its Affiliates or (B) €25,000,000 in revenues of such Competing Business for the fiscal year immediately preceding such acquisition or the commencement of such ownership or operations by the Parent or any of its Affiliates, provided that the limitations contained in the immediately preceding clauses (A) and (B) shall not prohibit the acquisition of a Competing Business by the Parent or any of its Affiliates in the event that all Winter Sports Hardgoods Activities of such Competing Business shall have been completely divested and no longer directly or indirectly owned or operated by the Parent or any of its Affiliates within 180 Business Days after the date of such acquisition; and (iii) the Parent and its Affiliates shall not be restricted from conducting or engaging or participating in the Winter Sports Hardgoods Activities described in Schedule 6.5(a). For the avoidance of doubt, nothing herein shall prevent or be deemed to prevent the completion of any company listed on transaction involving a national securities exchange or traded change of control of the Parent, including any transaction in which the over-the-counter market;Person acquiring control of the Parent operates a Competing Business.
(b) Each of During the Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Restricted Period, except as contemplated by the case may beTransition Services Agreement, for the Parent shall not, and shall cause its or his own benefit or for the benefit of any other Person:
controlled Affiliates (Aincluding Pilot, Meribel and Quiksilver Americas) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retainnot to, directly or indirectly: (i) except in the ordinary course of business, intentionally solicit or divert any Person who is business or clients or customers away from any Acquired Company; (ii) except in the ordinary course of business, intentionally induce any customers, clients, suppliers, agents or during the twelve other Persons under contract or otherwise associated or doing business with any Acquired Company, to reduce or alter any such association or business with such Acquired Company; or (12iii) months prior thereto wassolicit any Listed Employee (other than any Listed Employee whose employment with any Acquired Company has been terminated by such Acquired Company) employed as an employee by the Buyer to (A) terminate such employment or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliatesaccept employment, or enter into any other Person consulting arrangement, with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Products.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in than a business competitive with that of the Buyer Purchaser Party or any of its Subsidiaries Affiliates; provided, however, that, for the purposes of this Section 6.4(b), such solicitation, diversion or Affiliates. As used hereininducement described in the foregoing clauses (i), (ii) and (iii) shall not include any general advertisement by either of the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer Parent or any of their Subsidiaries or its Affiliates for employment by it, to the extent that such general advertisement is directed at the date hereofgeneral public and not at any (A) director (or Person in a similar position), officer or employee of the any Acquired Company, or (B) customers, clients, suppliers, agents or other Persons under contract or otherwise associated or doing business with any Acquired Company.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Seller Sellers and ▇'▇▇▇▇▇▇ acknowledge DTI each hereby covenant and agree that in order to assure on and after the Buyer that Closing until the Buyer will retain the value fourth anniversary of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD")Date, they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats their respective subsidiaries (the "FIRST PROTECTED PRODUCTS"including any company or other entity controlled by DTI or any Seller (whether currently existing or hereafter acquired or formed so long as owned or controlled by DTI); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingnot, directly or indirectly, engage (whether as a principal, agent, partner, officershareholder, employee, consultant or otherwise, own whether alone or operate in association with any business other person, corporation or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer), engaged entity) in the business design and/or manufacture and integration of marketing proprietary machines and/or integrated systems utilized in the pharmaceutical industry primarily for packaging, liquid filling and/or tablet filling applications including, but not limited to, bottle unscramblers, bottle air cleaners, electronic and slat tablet counters, liquid fillers, cottoners, cappers and labelers, collators and cartoners, and blister packaging or in the provision of any aftermarket support services for such machines, including, without limitation, through tooling, replacement and/or spare parts, servicing groups and/or other aftermarket support (collectively, the "Restricted Business"). Notwithstanding the foregoing, DTI and its respective subsidiaries shall, to the extent they are currently designing, manufacturing and/or selling any assembly, test or processing medical device equipment that includes as ancillary functions components that may perform one or more of the Protected Products. The foregoing provisions shall notabove-referenced operations, howeverbe permitted to design, prohibit the making of passive investments of five percent (5%) manufacture and/or sell assembly, test or less of the stock of any company listed on a national securities exchange or traded in the over-the-counter market;processing such medical device equipment.
(b) Each The Sellers and DTI each hereby covenant and agree that on and after the Closing until the fourth anniversary of the Seller and ▇'▇▇▇▇▇▇ Closing Date, they and their respective Affiliates agree that, after giving effect to the purchase of the Assets at the Closing, it or he will not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of subsidiaries (including any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment company or other professional relationship with the Buyer and/or its Affiliates, entity controlled by DTI or employ, consult any Seller (whether currently existing or otherwise retainhereafter acquired or formed)) shall not, directly or indirectly, any Person who is (i) solicit or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence induce, or attempt to influence solicit or induce, any UK Employee or US Employee who accepts employment with any Purchaser to leave the employ of any Purchaser or any of their affiliates for any reason whatsoever; provided however that neither any Seller nor DTI will be deemed to have violated this clause (i) merely as a supplier result of publishing a solicitation of general circulation, (ii) hire or employ any UK Employee or US Employee who accepts employment with any Purchaser, unless at the time of such hiring and employment such UK Employee or US Employee has not been employed by any Purchaser for a period of one year, (iii) without the prior written consent of US Purchaser, employ any UK Employee or US Employee who does not accept employment with a Purchaser within one year after closing or (iv) solicit or induce, or attempt to solicit or induce, any customer of the Buyer Business to purchase any goods or its Affiliatesproducts with respect to the Restricted Business, or any other Person with whom the Buyer otherwise impede or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
way with any customer relationship of any of the Business or any Purchaser. The Purchasers hereby covenant and agree that on and after the Closing until the first anniversary of the Closing Date, they and their subsidiaries (Cwhether currently existing or hereafter acquired or formed)) influence shall not, directly or indirectly solicit or induce, or attempt to influence solicit or induce, any employee of DTI and its subsidiaries to leave the employ of DTI and its subsidiaries for any reason whatsoever; provided however that Purchasers will not be deemed to have violated this clause merely as a supplier or customer result of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose publishing a solicitation of offering or selling any of the Protected Productsgeneral circulation.
(c) Except as may The Sellers and DTI acknowledge that their covenants contained in Sections 6.13(a) and 6.13(b) hereof are of a special, unique, unusual and extraordinary character, which give them peculiar value, the loss of which cannot be required reasonably or adequately compensated in an action at law, and that, in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at event there is a breach thereof by any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer DTI or any of their Subsidiaries respective affiliates, the Purchasers will suffer irreparable harm, the amount of which will be impossible to ascertain. Accordingly, each Purchaser, shall be entitled, if either so elects, to institute and prosecute proceedings in any court of competent jurisdiction, either at law or Affiliates in equity, to obtain damages for any breach or to enforce specific performance of the provisions or to enjoin any Seller, DTI or any of their respective affiliates from committing any act in breach of any covenant contained in Sections 6.13(a) and 6.13(b) of this Agreement. If any Purchaser is obliged to resort to the courts for the enforcement of any of the covenants contained in this Section 6.13, each such covenant shall be extended for a period of time equal to the period of such breach, if any, which extension shall commence on the later of (i) the date on which the original (unextended) term of such covenant is scheduled to terminate or (ii) the date of the final court order (without further right of appeal) enforcing such covenant.
(d) Notwithstanding Section 6.13(a) hereof, nothing contained herein shall prohibit any Seller or DTI or any of their affiliates from owning not in excess of 2% in the aggregate of the capital stock of any corporation if such stock is publicly traded and listed on any national or regional stock exchange or reported on the NASDAQ National Market.
(e) If, at the date hereoftime of enforcement of this Section 6.13, 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 to revise the restrictions contained herein to cover the maximum period, scope and area permitted by law.
Appears in 1 contract
Non-Competition; Non-Solicitation. (a) The Seller understands that Upper Holdings and ▇'▇▇▇▇▇▇ acknowledge that Buyer have an interest in order to assure protecting and preserving the Buyer that the Buyer will retain the going concern value of the AssetsBusiness following the Closing to the extent permitted by Law and that Upper Holdings and Buyer would not have entered into this Agreement absent the provisions of this Section 4.18 and, the therefore, Seller and ▇'▇▇▇▇▇▇ agree agrees that:
(i) , for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to as the "FIRST COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(ii) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"“Restricted Period”), they will Seller shall not, and shall cause its Affiliates not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingto, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer), engaged engage in the business provision of marketing or selling any online program management services to institutions of the Protected Products. The foregoing provisions shall nothigher education (each, a “Competitive Activity”); provided, however, prohibit that, notwithstanding anything in this Section 4.18(a) to the making contrary, (i) this Section 4.18(a) shall not apply with respect to (1) any Person or its Affiliates that acquires, whether by merger, consolidation, tender or exchange offer or other business combination or series of passive investments related transactions, all or a majority of five the capital stock of Seller or all or substantially all of Seller’s consolidated assets, where such Person or its Affiliates were already materially engaged in a Competitive Activity prior to such acquisition, (2) the purchase or ownership of the Equity Securities or assets of a Person (or any business) that derives less than twenty percent (520%) of its total annual revenues from a Competitive Activity, so long as Seller and its Affiliates (or less such Person) divests all or substantially all of (or otherwise discontinues) the portion of such Person or business that is engaged in Competitive Activities no later than twelve (12) months thereafter or (3) the direct or indirect ownership for passive investment purposes of up to 5% of the stock outstanding Equity Securities of any company listed Person that are traded on a national securities exchange or traded otherwise described on Section 4.18(a) of the Seller Disclosure Schedule, provided, that, in each such case, Seller and its Affiliates do not participate in the over-the-counter market;management or oversight thereof, and (ii) none of the businesses or activities conducted by Seller or any of its Affiliates as of the date hereof (other than the Business) or services provided pursuant to the Transition Services Agreement shall be deemed to constitute Competitive Activities.
(b) Each Seller agrees that the covenants included in Section 4.18(a) are, taken as a whole, reasonable in their geographic and temporal coverage and are necessary to protect the goodwill of the Business and the substantial investment made by Upper Holdings and Buyer therein, and Seller and ▇'▇▇▇▇▇▇ and their respective Affiliates agree thatshall not raise any issue of geographic or temporal reasonableness in any Claim to enforce such covenant; provided, after giving effect however, that if the provisions of Section 4.18(a) should ever be deemed to exceed the time or geographic limitations or any other limitations permitted by applicable Law in any jurisdiction, then such provisions shall be deemed reformed in such jurisdiction to the purchase of the Assets at minimum extent required by applicable Law in order to cure such unlawfulness and such provisions shall be enforced as so reformed.
(c) From and after the Closing, it or he will for a period of thirty (30) months following the Closing, Seller shall not, and shall cause its Affiliates not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retainto, directly or indirectly, any Person who is (solicit for employment or during the twelve (12) months prior thereto was) employed as an employee by the Buyer independent contractor any Continuing Employee earning annual compensation of $150,000 or its Affiliates;
(B) influence or attempt to influence a supplier or customer above as of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Products.
(c) Except as may be required in the business of the Buyer after the Closing, the Seller and ▇'▇▇▇▇▇▇ shall not at any time, directly or indirectly, use or purport to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as or similar to those used currently or in the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer or any of their Subsidiaries or Affiliates at the date hereof., except that this Section 4.18(c) shall not
Appears in 1 contract
Sources: Membership Interest and Asset Purchase Agreement (John Wiley & Sons, Inc.)
Non-Competition; Non-Solicitation. (a) The Seller and ▇'▇▇▇▇▇▇ acknowledge that in order to assure the Buyer that the Buyer will retain the value of the Assets, the Seller and ▇'▇▇▇▇▇▇ agree that:
(i) for For a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of five (5) years from following the Closing Date or two (2) years from the date the Management Services Agreement is terminated (such period shall be referred to Closing, except as the "FIRST COVENANT PERIOD")Purchaser may otherwise agree in writing, they will not compete with the Buyer Sellers shall not, and shall cause Seller Parent and its Subsidiaries Affiliates that are controlled by Seller Parent (each of Seller Parent and Affiliates at the time in questioneach such Affiliate, in connection with the following products: exercise and play mats, foam swim toys, foam pool toys and foam floats (the "FIRST PROTECTED PRODUCTS"); and
(iia “Controlled Affiliate”) for a period commencing on the Closing Date and expiring on the first to occur of (A) a breach by Toymax or the Buyer of any of their material obligations to the Seller or ▇'▇▇▇▇▇▇ under any of the Transaction Documents, which breach is not cured within sixty (60) days after notice thereof from the Seller and ▇'▇▇▇▇▇▇, or (B) the date which is the later of three (3) years from the Closing Date or one (1) year from the date the Management Services Agreement is terminated (such period shall be referred to as the "SECOND COVENANT PERIOD"), they will not compete with the Buyer and its Subsidiaries and Affiliates at the time in question, in connection with the following products: toy sprinklers, water slides and all other non-foam swim toys, non-foam pool toys and floats (the "SECOND PROTECTED PRODUCTS") (the First Protected Products and the Second Protected Products collectively, the "PROTECTED PRODUCTS") it being understood and agreed that water guns, tub, sand, bubble and novelty (non-swim and non-pool) water toys shall not be considered Protected Products. For purposes of this Section 5.7, the term compete shall include acting or participatingto, directly or indirectly, as a partner, officer, employee, consultant or otherwise, own or operate engage in any business or Person, or otherwise become or be interested in, or associate with or render assistance to any Person (other than the Buyer), engaged in aspect of the business of designing, developing, manufacturing, distributing, marketing and selling concrete and clay building products, in North America (excluding the Canadian provinces of Manitoba, Saskatchewan, Alberta and British Columbia) and the United Kingdom (the “Competing Business”), or selling perform management, executive or supervisory functions with respect to, or own, operate, control or make any investment in any Person who is engaged in any aspect of a Competing Business.
(b) Notwithstanding the foregoing, nothing in Section 5.18(a) shall prohibit the Sellers or any of the Protected Products. The foregoing provisions shall not, however, prohibit Controlled Affiliates from:
(i) engaging in the making activities described in Section 5.18 of passive investments of the Disclosure Schedule;
(ii) owning or acquiring or investing in securities listed on any national securities exchanges and representing less than five percent (5%) or less of the stock outstanding voting power of any company listed on a national securities exchange or traded in the over-the-counter marketPerson;
(biii) Each acquiring (including by merger, acquisition, sale of assets or otherwise) and owning any Person or any business that engages in a Competing Business, if (x) at the time of such acquisition the portion of such Person’s or business’ consolidated revenue from the Competing Business constitutes less than twenty-five percent (25%) of such Person’s or business’ consolidated revenue during its most recently completed fiscal year or (y) within 180 days of such acquisition, the Sellers or the Controlled Affiliates, as applicable, dispose of the portion of the business or operations of such acquired Person or business that constitutes a Competing Business or take other actions as shall be necessary such that at the expiration of such 180-day period the portion of such Person’s or business’ consolidated revenue from the Competing Business constitutes less than twenty-five percent (25%) of such Person’s or business’ consolidated revenue during its most recently completed fiscal year (it being agreed that the ownership of such Person or business pending such disposition or other actions and the ownership of such Person or business following such disposition shall not be prohibited by Section 5.18(a));
(iv) entering into or engaging in an alliance or joint venture which engages, or whose partners or other equity holders engage, in any Competing Business, if (1) at the time of entering into such alliance or joint venture the portion of such alliance’s or joint venture’s consolidated revenue from the Competing Business constitutes less than twenty-five percent (25%) of such alliance’s or joint venture’s consolidated revenue during its most recently completed fiscal year or (2) within 180 days of entering into such alliance or joint venture the alliance or joint venture shall dispose of the portion of the business or operations of such alliance or joint venture that constitutes the Competing Business or takes other actions as shall be necessary such that at the expiration of such 180-day period the portion of such alliance’s or joint venture’s consolidated revenue from Competing Business constitutes less than twenty-five percent (25%) of such alliance’s or joint venture’s consolidated revenue during its most recently completed fiscal year (it being agreed that the ownership of an interest in such alliance or joint venture pending such disposition or other actions and the ownership of an interest in such alliance or joint venture following such disposition shall not be prohibited by Section 5.18(a));
(v) selling, distributing, marketing or otherwise providing any products or services of the Sellers or any of their Affiliates in the ordinary course of business to a Person or business engaged in Competing Business (so long as such products or services of the Sellers do not involve, in and of themselves, designing, developing, manufacturing, distributing, marketing or selling concrete and clay building products in North America (excluding the Canadian provinces of Manitoba, Saskatchewan, Alberta and British Columbia) or the United Kingdom); or
(vi) complying with the terms of any Ancillary Agreement.
(c) The Sellers shall give prompt written notice (and, in any event, within ten (10) Business Days) to the Purchaser in the event that any of the Controlled Affiliates consummates any transaction that would have been prohibited by Section 5.18(a), but is permissible under this Section 5.18 because such transaction falls within paragraphs (b)(iii) or (b)(iv) above (an “Excluded Transaction”). Notwithstanding anything to the contrary in this Agreement or any of the Ancillary Agreements, at any time after Seller Parent or any of the Controlled Affiliates consummates any Excluded Transaction, and ▇'▇▇▇▇▇▇ and their respective at any time after Seller Parent or any of the Controlled Affiliates agree that, materially breaches Section 5.18(a) (after giving effect to the exceptions set forth in Section 5.18(b)), the Purchaser and its Affiliates shall be permitted to immediately terminate without liability (subject to any firm commitments that have been provided in respect of the purchase of products or deliveries of products then in progress), in their sole discretion and upon no less than (10) Business Days prior written notice: (i) to the Assets at extent that any such Excluded Transaction or material breach is in respect of a Competing Business conducted in the United States, the NAM Cement Supply Agreement; and (ii) to the extent that any such Excluded Transaction or material breach is in respect of a Competing Business conducted in the United Kingdom, the UK Aggregates Supply Agreement and the UK Cement Supply Agreement.
(d) For a period of two (2) years following the Closing, it or he will the Sellers shall not, and shall cause their Affiliates not directly or indirectly, during the First Covenant Period and Second Covenant Period, as the case may be, for its or his own benefit or for the benefit of any other Person:
(A) influence or attempt to influence any Person (other than employees of the Seller providing consulting services to Buyer at the time of Closing) to either terminate or modify such Person's employment or other professional relationship with the Buyer and/or its Affiliates, or employ, consult or otherwise retainto, directly or indirectly, solicit or recruit any Person person who is (at any time on or during the twelve (12) months prior thereto was) employed as an employee by the Buyer or its Affiliates;
(B) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, to terminate or modify any written or oral agreement or course of dealing with the Buyer or its Affiliates, or to otherwise interfere with the Buyer's relationships with such parties in any way; or
(C) influence or attempt to influence a supplier or customer of the Buyer or its Affiliates, or any other Person with whom the Buyer or its Affiliates shall have dealt, for the purpose of offering or selling any of the Protected Products.
(c) Except as may be required in the business of the Buyer after the Closing, Closing Date is a Business Group Employee; provided that the Seller and ▇'▇▇▇▇▇▇ foregoing shall not at any time, directly or indirectly, use or purport prohibit (i) a general solicitation to authorize any Person to use any name, ▇▇▇▇, logo, trade dress or other identifying words or images which are the same as public of general advertising or similar to those used currently methods of solicitation by search firms not specifically directed at Business Group Employees or in (ii) the past by the Seller uniquely in connection with the Funnoodle Product Line, whether or not such use would be in a business competitive with that of the Buyer or any of its Subsidiaries or Affiliates. As used herein, the phrase "competitive business" means any business competitive with the type of business engaged in by the Seller, the Buyer Sellers or any of their Affiliates from soliciting, recruiting or hiring any Business Group Employee who has ceased to be employed or retained by a Company or Company Subsidiary. “Business Group Employee” means, collectively, all of the officers, directors and employees of the Companies and the Company Subsidiaries and any Specified Covered Employees (as defined in the NAM Transition Services Agreement and the UK Transition Services Agreement, respectively) that are actually retained by a Company or Affiliates at the date hereofa Company Subsidiary.
Appears in 1 contract
Sources: Purchase Agreement (Forterra, Inc.)