Non-Competition; Nonsolicitation. (a) For a period of five years from and after the Closing Date, neither the Parent, the Seller nor any of their respective Affiliates (other than individuals who are officers, directors and/or controlling stockholders) (collectively, the "Restricted Parties") shall, directly or indirectly, (i) own, manage, operate, join, control or participate in the ownership, management, operation or control of, or provide any financing or lease any assets to, any entity that engages in, or that the Restricted Party knows intends to engage in, a Competing Business, or (ii) solicit, retain as a consultant, interfere with or attempt to entice away from the Purchaser, the Group or their respective Affiliates, any Protected Employee, or (iii) solicit, interfere with or attempt to entice away from the Purchaser, the Group or their respective Affiliates, any person, firm or corporation which has been or is during the two-year period commencing on the Closing Date a customer of the Purchaser or any Group Member. Ownership of not more than 2% of the outstanding stock of any publicly traded company shall not be a violation of this Section 8.11 so long as the Restricted Parties do not participate in the management of such company. (b) The length of time for which this covenant not to compete shall be in force shall not include any period of violation or any other period required for litigation during which Purchaser or any Group Member seeks to enforce this Section 8.11. In the event that any of the covenants contained in this Section 8.11 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 its being too extensive in any other respect, it shall be interpreted to extend only over the longest period of time for which it may be enforceable, and/or over the largest 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. (c) The restrictive covenants contained in this Section 8.11 are each covenants independent of any other provision of this Agreement, and the existence of any claim which any party may allege against any other party to this Agreement, whether based on this Agreement or otherwise, shall not prevent the enforcement on these covenants. The Seller and the Parent acknowledge that the Purchaser is purchasing the Companies in reliance on the goodwill of the businesses of the Group and the covenants contained in this Section 8.11 are essential to the protection of the Purchaser's purchase of the Companies and that the Purchaser would not purchase the Companies but for these covenants. The Seller and the Parent agree that a breach by any of them of this Section 8.11 shall cause irreparable harm to the Purchaser and the Group -and that the Purchaser's and the Group's remedies at law for any breach or threat of breach of the provisions of this Section 8.11 shall be inadequate, and that the Purchaser and the Group shall be entitled to an injunction or injunctions to prevent breaches of this Section 8.11 and to enforce specifically the terms and provisions hereof, in addition to any other remedy to which the Purchaser or the Group may be entitled at law or in equity.
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Non-Competition; Nonsolicitation. (a) For a period of the five (5) years from and after commencing on the Closing Date, neither Date (the Parent“Restricted Period”), the Seller nor Sellers shall not, and shall cause each of their respective Affiliates not to, anywhere in the world, directly or indirectly, establish, own, lease, operate, manage, finance, control or engage in the Business (“Competitive Business”). For the avoidance of doubt, a Competitive Business shall not include any of (i) the business currently conducted at Freeport’s Bayway facility, El Paso facility and Norwich facility, (ii) the manufacture, distribution and sale of copper rod, or (iii) an investment in securities having less than ten percent (10%) of the outstanding voting power of any Person, the securities of which are publicly traded or listed on any securities exchange or automated quotation system or (iv) ownership of any equity interests through any employee benefit plan or pension plan.
(b) Notwithstanding anything to the contrary contained in this Section 4.12, the Sellers and their respective Affiliates shall not be deemed to have violated the restrictions contained in this Section 4.12 in the event that the Sellers or any of their respective Affiliates invest in or acquire all or a portion of the equity interests or assets of any Person that is engaged in a Competitive Business so long as the Sellers and such of their respective Affiliates thereafter use their best efforts to complete the divestment of all of such investment, equity interest or assets within twelve (other than individuals who are officers, directors and/or controlling stockholders12) months from the date of such investment or acquisition so as to be in compliance with Section 4.12(a); provided that such 12-month period shall be extended by the number of days during the period commencing on the date that the Purchaser provides a non-binding indication of intent pursuant to Section 4.12(c) and ending on the earlier of (collectivelyx) the date that the Purchaser notifies Freeport that the parties cannot reach agreement with respect to the sale of the Competitive Business and (y) six (6) months from the date such non-binding indication of interest is delivered.
(c) Upon the acquisition by any Seller or an Affiliate thereof of an investment in or an acquisition of an equity interest or assets of a Competitive Business (the “Competitive Business Acquisition”), the "Restricted Parties") Purchaser shall have the option to purchase such Competitive Business for the price and on any terms and conditions that Freeport shall, directly by written notice (the “ROFO Notice”), propose to the Purchaser, which proposal shall be made by Freeport within twenty (20) Business Days after such acquisition. The Purchaser shall have twenty (20) Business Days from the receipt of the ROFO Notice from Freeport to indicate whether or indirectlynot, subject to due diligence, it is interested in exercising its option to purchase the Competitive Business. If within such period, the Purchaser shall so decide to exercise its option to purchase the Competitive Business, then it shall so notify Freeport by providing a non-binding indication of interest and thereafter Freeport and the Purchaser shall, for a period not to exceed six (6) months, negotiate the terms of a definitive agreement, containing customary terms and conditions, that allows the Purchaser to acquire the Competitive Business. If the Purchaser notifies Freeport that it will not exercise its option to purchase the Competitive Business or the parties cannot reach an agreement with respect to the sale of the Competitive Business within such six (6) month period, the applicable Seller shall have the right to sell such Competitive Business to a third party on terms no less favorable to such Seller than the terms offered to the Purchaser in the ROFO Notice.
(d) During the Restricted Period, the Sellers shall not, and shall cause each of their respective Affiliates not to, solicit the employment of or hire any Business Employee; provided, however, that the foregoing provision will not prevent the Sellers from (i) ownhiring any such Business Employee responding to a general advertisement for employment without any encouragement by the Sellers or any of their Representatives, manage, operate, join, control or participate in the ownership, management, operation or control of, or provide any financing or lease any assets to, any entity that engages in, or that the Restricted Party knows intends to engage in, a Competing Business, or (ii) solicit, retain as a consultant, interfere with the hiring of any Business Employee who contacts any of the Sellers on their own initiative without any encouragement by the Sellers or attempt to entice away from the Purchaser, the Group or any of their respective Affiliates, any Protected EmployeeRepresentatives, or (iii) solicit, interfere with or attempt to entice away from the Purchaser, the Group or their respective Affiliates, hiring of any person, firm or corporation which Business Employee who has been or is during the two-year period commencing on the Closing Date a customer of terminated by the Purchaser or any Group Member. Ownership of not more than 2% member of the outstanding stock Company Group or its Affiliates prior to commencement of any publicly traded company shall not be a violation employment discussions with the Sellers.
(e) It is the desire and intent of the parties to this Agreement that the provisions of this Section 8.11 so long as the Restricted Parties do not participate in the management of such company.
(b) The length of time for which this covenant not to compete 4.12 shall be enforced to the fullest extent permissible under the laws and public policies of each jurisdiction in force shall not include which enforcement is sought. If any period particular provisions or portion of violation or any other period required for litigation during which Purchaser or any Group Member seeks to enforce this Section 8.11. In the event that any of the covenants contained in 4.12 shall be adjudicated to be invalid or unenforceable, this Section 8.11 4.12 shall be determined by deemed amended, and the Sellers and the Purchaser expressly authorize any court of competent jurisdiction to delete therefrom such provision or portion adjudicated to be unenforceable by reason of its extending for too long a period of time invalid or over too large a geographical area or by reason of its being too extensive in any other respectunenforceable, it shall be interpreted such amendment to extend apply only over the longest period of time for which it may be enforceable, and/or over the largest geographical area as to which it may be enforceable and/or with respect to the maximum extent operation of such section in all other respects as to the particular jurisdiction in which it may be enforceable, all as determined by such court in such actionadjudication is made.
(cf) The restrictive covenants contained Without limiting the remedies set forth in this Section 8.11 are each covenants independent of Agreement in any other provision of this Agreementmanner, and the existence of any claim which any party may allege against any other party to this Agreement, whether based on this Agreement or otherwise, shall not prevent the enforcement on these covenants. The Seller and the Parent acknowledge that the Purchaser is purchasing the Companies in reliance on the goodwill of the businesses of the Group and the covenants contained in this Section 8.11 are essential to the protection of the Purchaser's purchase of the Companies and that the Purchaser would not purchase the Companies but for these covenants. The Seller and the Parent agree that a breach by any of them of this Section 8.11 shall cause irreparable harm to the Purchaser and the Group -and that the Purchaser's and the Group's remedies at law for any breach or threat of breach of the provisions of this Section 8.11 shall be inadequate, and that the Purchaser and the Group shall be entitled to an injunction or injunctions to prevent breaches of this Section 8.11 and to enforce specifically the terms and provisions hereofentitled, in addition to other such remedies that it may otherwise have, to injunctive relief, including preliminary and final, relief against the Sellers or any other remedy Affiliates thereof to which the Purchaser or the Group may be entitled at law or in equityprevent any violations of this Section 4.12.
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Non-Competition; Nonsolicitation. (a) For a period of five years from and after the Closing Date, neither the Parent, the Seller nor any of their respective Affiliates (other than individuals who are officers, directors and/or controlling stockholders) (collectively, the "Restricted Parties") shall, directly or indirectly, (i) own, manage, operate, join, control or participate in the ownership, management, operation or control of, or provide any financing or lease any assets to, any entity that engages in, or that the Restricted Party knows intends to engage in, a Competing Business, or (ii) solicit, retain as a consultant, interfere with or attempt to entice away from the Purchaser, the Group or their respective Affiliates, any Protected Employee, or (iii) solicit, interfere with or attempt to entice away from the Purchaser, the Group or their respective Affiliates, any person, firm or corporation which has been or is during the two-year period commencing on the Closing Date a customer of the Purchaser or any Group Member. Ownership of not more than 2% of the outstanding stock of any publicly traded company shall not be a violation of this Section 8.11 so long as the Restricted Parties do not participate in the management of such company.. 37
(b) The length of time for which this covenant not to compete shall be in force shall not include any period of violation or any other period required for litigation during which Purchaser or any Group Member seeks to enforce this Section 8.11. In the event that any of the covenants contained in this Section 8.11 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 its being too extensive in any other respect, it shall be interpreted to extend only over the longest period of time for which it may be enforceable, and/or over the largest 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.
(c) The restrictive covenants contained in this Section 8.11 are each covenants independent of any other provision of this Agreement, and the existence of any claim which any party may allege against any other party to this Agreement, whether based on this Agreement or otherwise, shall not prevent the enforcement on these covenants. The Seller and the Parent acknowledge that the Purchaser is purchasing the Companies in reliance on the goodwill of the businesses of the Group and the covenants contained in this Section 8.11 are essential to the protection of the Purchaser's purchase of the Companies and that the Purchaser would not purchase the Companies but for these covenants. The Seller and the Parent agree that a breach by any of them of this Section 8.11 shall cause irreparable harm to the Purchaser and the Group -and and that the Purchaser's and the Group's remedies at law for any breach or threat of breach of the provisions of this Section 8.11 shall be inadequate, and that the Purchaser and the Group shall be entitled to an injunction or injunctions to prevent breaches of this Section 8.11 and to enforce specifically the terms and provisions hereof, in addition to any other remedy to which the Purchaser or the Group may be entitled at law or in equity.
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