Non-Solicitation. (a) During the period beginning on the Closing Date and ending on the 18-month anniversary of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly: (i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or (ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual. (b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations. (c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified. (d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking. (e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 3 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Raymond James Financial Inc), Stock Purchase Agreement (Regions Financial Corp)
Non-Solicitation. (a) During the For a period beginning on the Closing Date and ending on the 18-month anniversary of two (2) years following the Closing Date, Buyer will not, and except as otherwise required will cause all of its Subsidiaries and its and such Subsidiaries’ respective officers and directors not to, and shall not authorize or permitted by permit its Representatives to, directly or indirectly, hire, retain, employ or solicit to employ or hire or retain any Ancillary Agreement, of the employees of Seller and its Affiliates as of the Closing Date or any time during the twelve (collectively12) month period ending on the Closing Date; provided, however, that this provision shall not apply to (i) general solicitations of employment not specifically directed towards employees of Seller and its Affiliates or (ii) any such individual whose employment relationship is terminated by Seller or any of its Affiliates following the “Restricted Entities”Closing.
(b) Except with respect to the individuals set forth on Schedule 7.8, for a period of two (2) years following the Closing Date, Seller will not, and will cause all of its Subsidiaries and its and such Subsidiaries’ respective officers and directors not to, and shall notnot authorize or permit its Representatives to, directly or indirectly:
(i) Induce, hire, retain, employ or solicit to employ or encourage, hire or attempt to induce, solicit or encourage, retain any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by of the Companies employees of Buyer and the Transferred Subsidiaries its Affiliates as of the Closing Date (including, for this purpose, the “Restricted Services”persons on the Agreed List of Employees) or any time during the twelve (212) reduce, terminate or adversely modify month period ending on the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted EntityClosing Date; provided, however, that the foregoing this provision shall not apply to (i) general solicitations of employment not specifically directed towards employees of Buyer and its Affiliates or (ii) any (1) such individual whose employment or service was relationship is terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller Buyer or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that following the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitationsClosing.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Datascope Corp), Asset Purchase Agreement (Mindray Medical International LTD)
Non-Solicitation. Section 4.1 During the Term, Parent will not, without the prior written consent of Seller, and Parent will cause its controlled Affiliates (including, after the Closing, the Transferred Entities) not to:
(a) During the period beginning on the Closing Date and ending on the 18-month anniversary encourage, induce, attempt to induce or solicit business from any customer or client of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries Retained Business as of the Closing Date (collectively, the “Restricted ServicesCovered Customers”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services), in each case case, for the purpose of interfering with the relationship between any such Covered Customer, on the one hand, and the Retained Business, on the other than as hand, by providing goods, products or services with respect to, or on behalf of, any business that competes with the Retained Business (it being understood that the placement of general advertisements that may be targeted to a consequence of particular geographic or technical area, but which are not targeted directly towards a general solicitation conducted by Covered Customer, shall not be prohibited or restricted under, or deemed to be a Restricted Entity not specifically directed at Restricted Customersbreach of, this Section 4.1(a)); or
(iib) Solicitencourage, hire or induce, attempt to induce or solicit any Covered Customer to cease doing business with the Retained Business or hire Seller or any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; of its Affiliates. provided, howeverthat, that except as expressly set forth in Section 4.1(a) or Section 4.1(b), nothing in this Agreement shall prohibit, restrict or otherwise limit the foregoing shall not apply to ability of Parent or any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its controlled Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individualfrom doing business with any Covered Customer.
(b) Purchaser agrees that from Section 4.2 Notwithstanding anything to the date hereof until the 18-month anniversary contrary, nothing in this Section 4 shall prohibit or restrict Parent or any of the Closing Date it shall not, and shall cause its controlled Affiliates (including the Companies and the Transferred Subsidiaries) not tofrom, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment performing its obligations under the Purchase Agreement or service was terminated by Seller or its Affiliatesany Ancillary Agreement, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring owning as a result passive investment less than five percent (5%) of such postingthe outstanding shares of the capital stock of a publicly-traded company that competes with the Retained Business, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser owning as a passive investment an equity interest in a private debt or equity investment fund or vehicle (or any portfolio company (as such term is customarily understood in the private equity industry) or investment of any such fund or vehicle) in which neither Joby nor any of its Affiliates (including has the Companies and the Transferred Subsidiaries) ability to specifically solicit control or materially influence investment decisions or exercise any managerial control over such individuals fund, vehicle, portfolio company or hiring as a result of such solicitationsinvestment.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Commercial Agreement (Strata Critical Medical, Inc.), Equity Purchase Agreement (Blade Air Mobility, Inc.)
Non-Solicitation. (a1) During Except as expressly provided in this Article 5, the period beginning on the Closing Date and ending on the 18-month anniversary of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller Company and its Affiliates (collectively, the “Restricted Entities”) Subsidiaries shall not, directly or indirectly, through any officer, director, employee, representative (including any financial or other adviser) or agent of the Company or of any of its Subsidiaries (collectively “Representatives”), and shall not permit any such Person to:
(ia) Inducesolicit, solicit assist, initiate, knowingly encourage or encourageotherwise knowingly facilitate, (including by way of furnishing or providing copies of, access to, or attempt to induce, solicit or encouragedisclosure of, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as confidential information, properties, facilities, books or records of the Closing Date Company or any Subsidiary) any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to, an Acquisition Proposal;
(b) enter into or otherwise engage or participate in any discussions or negotiations with any Person (other than the “Restricted Services”Purchaser or any of its affiliates) regarding any inquiry, proposal or (2) reduceoffer that constitutes or would reasonably be expected to constitute or lead to, terminate or adversely modify an Acquisition Proposal, it being acknowledged and agreed that the employment Company may communicate with any Person for purposes of advising such Person of the Companies non-solicitation restrictions in Article 5 hereof, also advising such Person, as applicable, that their Acquisition Proposal does not constitute a Superior Proposal or the Transferred Subsidiaries for such services, in each case other than as is not reasonably expected to constitute or lead to a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted CustomersSuperior Proposal; or
(iic) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or make a Change in any Recommendation other capacity (including as an independent contractor or consultant) with than following the occurrence of a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, Purchaser Material Adverse Effect.
(2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall notThe Company shall, and shall cause its Affiliates Subsidiaries and its Representatives to, immediately cease and terminate, and cause to be terminated, any solicitation, encouragement, discussion, negotiations, or other activities commenced on or prior to the date of this Agreement with any Person (other than the Purchaser) with respect to any inquiry, proposal or offer that constitutes, or may reasonably be expected to constitute or lead to, an Acquisition Proposal, and in connection therewith the Company shall:
(a) promptly discontinue access to and disclosure of all confidential information, including the Companies Company Data Room, properties, facilities, books and records of the Transferred SubsidiariesCompany or any Subsidiary of the Company; and
(b) within two Business Days of the date hereof, to the extent it is permitted to do so, request, and use commercially reasonably efforts to exercise all rights it has to require (i) the return or destruction of all copies of any confidential information regarding the Company or any Subsidiary provided to any such Person other than the Purchaser; and (ii) the destruction of such material including or incorporating or otherwise reflecting such confidential information regarding the Company or any Subsidiary, to the extent that such information has not topreviously been returned or destroyed, directly using its commercially reasonable efforts to ensure that such requests are fully complied with in accordance with the terms of such rights or indirectlyentitlements.
(3) The Company represents and warrants that, solicitin the 12 months prior to the date hereof, hire the Company has not waived any standstill or attempt similar agreement or restriction to solicit which the Company or hire any employee Subsidiary is a party relating to an Acquisition Proposal, and covenants and agrees that (i) the Company shall use commercially reasonable efforts to enforce each confidentiality, standstill, non-disclosure or similar agreement or restriction to which the Company or any Subsidiary is a party in connection with a potential or actual Acquisition Proposal, and (ii) neither the Company, nor any Subsidiary will, without the prior written consent of Seller the Purchaser (which may be withheld or delayed in the Purchaser’s sole and absolute discretion), release any Person from, or waive, amend, suspend or otherwise modify such Person’s obligations respecting the Company, or any of its Affiliates who Subsidiaries, under any confidentiality, standstill, non-disclosure or similar agreement or restriction to which the Company or any Subsidiary is not a Continuing Employee for employment party in connection with a potential or in any other capacity (including as an independent contractor or consultant); providedactual Acquisition Proposal, however, it being acknowledged and agreed that the foregoing shall not apply to automatic termination of any (i) individual whose employment standstill, confidentially or service was terminated by Seller non-disclosure provisions of any such agreement or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring restriction as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies entering into and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element announcement of this Agreement and thatby the Company pursuant to the express terms of any such agreement or restriction, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance a violation of any other provision this Section 5.1 and that the Company shall not be prohibited from considering a Superior Proposal from a party whose obligations so terminated automatically upon the entering into and announcement of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Arrangement Agreement (Cresco Labs Inc.), Arrangement Agreement (Columbia Care Inc.)
Non-Solicitation. (a) During In light of each Member’s access to Confidential Information and position of trust and confidence with the Company, each Member hereby agrees that, for so long as it or its Permitted Transferee, directly or indirectly, owns a Membership Interest and for a period beginning on the Closing Date and ending on the 18-month anniversary of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates twelve (collectively, 12) months thereafter (the “Restricted EntitiesPeriod”), such Member shall not (and it shall cause its controlled Affiliates) directly or indirectly through one or more of any of its controlled Affiliates, hire or solicit, or encourage any other Person to hire or solicit, any individual who has been employed by the Company within one (1) year prior to the date of such hiring or solicitation, or encourage any such individual to leave such employment. This Section 10.02(a) shall not prevent a Member or its controlled Affiliates from hiring or soliciting any employee or former employee of the Company who responds to a general solicitation that is a public solicitation of prospective employees and not directed specifically to any Company employees.
(b) In light of each Member’s access to Confidential Information and position of trust and confidence with the Company, each Member further agrees that, during the Restricted Period, it shall not, directly or indirectly:
(i) Induceindirectly through one or more of any of its controlled Affiliates, solicit or encourageentice, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire entice, any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; providedclients, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent tocustomers, or do not specifically target, Continuing Employees suppliers of the Company for purposes of diverting their business or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that services from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitationsCompany.
(c) The parties acknowledge Each Member acknowledges and agrees that a breach or threatened breach of this Section 10.02 would give rise to irreparable harm to the other Member and the Company, 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 Member of any such obligations, the other Members and the Company shall, in 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, as well as an equitable account of all earnings, profits, and other benefits arising from any such breach, and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(d) Each Member acknowledges that the restrictions contained in this Section 10.02 are reasonable and necessary to protect the Members’ legitimate interests and constitute a material inducement to the other Member to enter into this Agreement and consummate the transactions contemplated hereby. If any court of competent jurisdiction determines that any of the covenants set forth in this Section 7.7 are an essential element of this Agreement and that10.02, but for the agreement of each party to comply with these covenantsor any part thereof, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement is unenforceable because of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after duration or geographic scope of such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scopeprovision, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce modify any such unenforceable provision in lieu of severing such unenforceable provision from this Agreement in its entirety, whether by rewriting the scope, duration or geographical area of any invalid or unenforceable term or offending provision, deleting any or all of the offending provision, adding additional language to delete specific words or phrasesthis Section 10.02, or by making such other modifications as it deems warranted to replace any invalid or enforceable term or provision with a term or provision that is valid carry out the intent and enforceable and that comes closest to expressing the intention agreement of the invalid or unenforceable provisionparties, in order to render the restrictive covenants set forth in this Section 7.7 enforceable as embodied herein, to the fullest maximum extent permitted by applicable Applicable Law; and (iii) . The parties hereto expressly agree that this Agreement as so modified by the restrictive covenants set forth in this Section 7.7 court shall be binding on and enforceable as so modifiedagainst each of them.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Algorhythm Holdings, Inc.), Operating Agreement (Singing Machine Co Inc)
Non-Solicitation. (a) During From the period beginning on time of execution and delivery by each Seller and Buyer of this Agreement until the Closing Date Bidding Procedures Order is entered by the Bankruptcy Court and ending on the 18-month anniversary following entry of the Closing Date, and except Sale Order (both periods being referred to as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted EntitiesNon-Solicitation Period”) ), Sellers shall not, and shall cause each of the Target Companies and, to the extent permitted in the Tiwest Joint Venture Documents, Tiwest not to, nor shall they authorize or permit any of their respective Representatives or Affiliates to directly or indirectly:
, solicit, facilitate or encourage submission of any inquiries, proposals or offers by, respond to any unsolicited inquiries, proposals or offers submitted by, or enter into any discussions or negotiations regarding a Competing Transaction with any Person (iother than Buyers or any of their respective Affiliates, agents or Representatives) Inducewith respect to (A) any sale or other disposition of all or any portion of the Acquired Business, solicit the equity securities of Sellers, Target Companies, Tiwest (including for purposes of this Section 5(c)(v), the Tiwest Joint Venture), the Acquired Assets or encourageany similar transaction with respect to the Acquired Business, Sellers, the Target Companies, Tiwest or the Acquired Assets or (B) any Restructuring Transaction (such transactions described in clause (A) or (B) but excluding any transactions with Buyers being referred to as an “Acquisition Transaction”); or provide any information or data to, or have any discussions with any Person relating to, or that could reasonably be expected to lead to or result in, any Acquisition Transaction; or otherwise facilitate any effort or attempt to inducemake or implement any Acquisition Transaction; or approve, solicit recommend, propose publicly to approve or encourage, recommend or enter into any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) agreement or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in understanding with any other capacity (including as an independent contractor Person that contemplates or consultant) with a Restricted Entityrelates to any Acquisition Transaction. Sellers shall not, and shall not authorize any Target Company to, execute any definitive documents relating to any Acquisition Transaction during the Non-Solicitation Period; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth nothing in this Section 7.7 are an essential element 5(c)(v) shall prohibit Sellers during the portion of this Agreement and thatthe Non-Solicitation Period preceding the entry of the Sale Order from responding to any unsolicited inquiries from or engaging in discussions with the official committees appointed in the Chapter 11 Cases or engaging in discussions with any third parties in consultation with such official committees, with respect to such Restructuring Transaction to the extent Tronox Incorporated determines, in good faith, that such action is required by the Tronox Incorporated board of directors’ fiduciary duties to Tronox Incorporated’s stakeholders. Sellers shall notify Buyers promptly, but for in any event within twenty-four hours after receipt, of the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance receipt of any other provision of this Agreement. The existence of any claim inquiries, proposals or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition offers related to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree Acquisition Transaction together with true and complete copies of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertakingall documents related thereto.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Asset and Equity Purchase Agreement (Tronox Inc), Asset and Equity Purchase Agreement (Huntsman International LLC)
Non-Solicitation. (a) During the For a period beginning on the Closing Date and ending on the 18-month anniversary of twelve (12) months from the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it HFSG shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, without the prior written consent of Buyer, directly or indirectly, solicitsolicit for employment, hire or attempt to solicit employ or hire any employee Business Employee; provided, that HFSG and its Affiliates may solicit, employ or hire any such Person who was terminated or otherwise discharged by any of the Acquired Companies or their respective Affiliates at least three (3) months prior to the first such solicitation or employment; provided, further, that nothing in this Section 8.08(a) shall prohibit Seller or any of its Affiliates from employing or hiring any Person who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by contacts Seller or its Affiliates, (ii) publishing or posting any of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates on his or hiring her own initiative without direct solicitation or as a result of such postinga general solicitation to the public or general advertising not directed at Business Employees.
(b) For a period of twelve (12) months from the Closing Date, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or Buyer shall not, and shall cause its Affiliates Subsidiaries (including the Companies Acquired Companies) not to, without the prior written consent of Seller, directly or indirectly, solicit for employment, employ or hire any employee who received severance payments under the Seller Severance Plan, any Business Employee who does not become a Transferred Employee or any individual who provides transition services pursuant to the Transition Services Agreement; provided, that Buyer and its Subsidiaries may solicit, employ or hire any such individual (other than any employee who received severance payments under the Seller Severance Plan or Business Employees who do not become Transferred SubsidiariesEmployees) who was terminated or otherwise discharged by Seller or any of its Affiliates at least three (3) months prior to specifically solicit the first such individuals solicitation or employment; provided, further, that nothing in this Section 8.08(b) shall prohibit Buyer or any of its Subsidiaries from employing or hiring any Person (other than any employees who received severance payments under the Seller Severance Plan or Business Employees who do not become Transferred Employees) who contacts Buyer or any of its Subsidiaries on his or her own initiative without direct solicitation or as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense general solicitation to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after public or general advertising not directed at such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedindividuals.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Hartford Financial Services Group Inc/De), Stock and Asset Purchase Agreement
Non-Solicitation. (a) During The Executive further agrees that the period beginning on the Closing Date and ending on the 18-month anniversary provisions of Section 3 of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, Confidentiality Agreement relating to non-solicitation of employees shall apply for a period of thirty-six months following the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Separation Date (the “Restricted ServicesConfirmation Date”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates be modified and expanded (including i) to include the Companies and the Transferred Subsidiaries) Executive’s agreement not to, directly or indirectly, induce, solicit, hire or attempt to solicit persuade any individual who is, or hire at any employee of Seller time during the six month period ending on the Separation Date was, employed at a Company hotel (any such individual, a “Company Associate”), to accept employment with a company, organization or any of its Affiliates who other association at which the Executive is not a Continuing Employee for employment then employed, engaged or in any other capacity (including as an independent contractor or consultant); providedassociated, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, and (ii) publishing to require the Executive to give the Company reasonable notice (which may be given to the General Counsel or posting CHRO of open positions the Company by email) in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as event the Executive becomes actually aware (without an inquiry obligation) that a result of such postingCompany Associate who (x) is a hotel general manager, or (iiiy) solicitations made by third-party search firms that have not been directed by Purchaser holds the title of Vice President or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and thatabove, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision accepts employment with a term company, organization or provision that other association at which the Executive is valid and enforceable and that comes closest to expressing the intention of the invalid then employed, engaged or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and associated (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
, the “Nonsolicitation Covenant”). Executive agrees to grant to the Company a first priority, perfected security interest in all of his right, title and interest in and to all cash proceeds payable or shares of Class A Common Stock of the Company delivered upon exercise, settlement or vesting of the SARs, RSUs, or RSs (dless any shares withheld for taxes), but solely applicable with regard to the SARs, RSUs, or RSs which are unvested as of the Separation Date, and all proceeds received thereon (less applicable taxes), as collateral security for the performance of his obligations under the Nonsolicitation Covenant pursuant to a security agreement (or similar agreement) The parties hereby acknowledge and agree related documents, including, without limitation an escrow agreement if required by the Company, to be executed and delivered by the Executive on or before June 13, 2014; provided that irreparable damage would occur if this Section 7.7 were not performed (A) the Executive shall retain the right to direct the disposition of such SARs, RSUs and RSs and the investment of cash proceeds thereon while the security arrangements are in accordance with its specific terms effect, and (B) that any breach SARs, RSUs, RSs, cash settlement amounts and shares of this Section 7.7 by Class A Common Stock of the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition Company and any proceeds thereon subject to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party the security arrangements shall be entitled released to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertakingthe Executive on the Confirmation Date if the Executive has fulfilled his obligations under the Nonsolicitation Covenant.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Transition Agreement, Transition Agreement (Hyatt Hotels Corp)
Non-Solicitation. (a) During Purchaser hereby covenants and agrees, during the period beginning on the Closing Date date hereof and ending on the 18-month second (2nd) anniversary of the Closing DateDate (the “Purchaser Non Solicitation Period”), and except as otherwise required not directly or permitted by indirectly to (A) induce or attempt to induce any Ancillary Agreementofficer, Seller and its Affiliates employee, representative or agent of Matrix or any Subsidiary of Matrix (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourageto leave the employ of such Restricted Entity, or attempt to induce(B) hire, solicit or encouragewithin twelve months following the date of termination of such person’s employment with such Restricted Entity, any person who was an employee of any Restricted Customer Entity (x) at any time during the year prior to the date hereof or (1y) use during the Purchaser Non Solicitation Period, or (C) in any other way interfere with the relationship between any Restricted Entity and any employee thereof. Notwithstanding the foregoing, nothing in this Agreement will prevent Purchaser from (x) hiring any Person who was employed at any time by any Restricted Entity and whose employment was terminated by such Restricted Entity following the Closing or (y) hiring any employee of a Restricted Entity who makes an unsolicited approach to provide any services which are offered by Purchaser seeking employment in response to the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) general advertisement or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence public announcement of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individualjob opening.
(b) Sellers and Purchaser agrees that agree, for a period of five (5) years from the date hereof until the 18-month anniversary of the Closing Date it shall notDate, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicitmake any statement or other communication (whether written or oral) that impugns or attacks the reputation or character of Purchaser, hire any Seller or attempt to solicit Restricted Entity, or hire damages the goodwill of Purchaser, any employee of Seller or any Restricted Entity.
(c) Each Seller other than Matrix hereby covenants and agrees, for the respective period of time from and after the Closing Date set forth opposite such Seller’s name on Exhibit 6.7(c) hereto, not to, and to cause its Affiliates who is Subsidiaries not to, establish a Continuing Employee business or employ Persons with the intent of competing with the provision of: (i) managed account platform technology, including back office systems to support the administration of an investment advisor’s managed account business or (ii) advisory and administrative services to investment advisors and their clients as part of a managed account platform technology, in the case of either of the preceding clauses (i) or (ii), anywhere within the United States (a “Competing Business”). Subject to any exceptions set forth by the separate written agreement of Matrix and Purchaser, Matrix hereby covenants and agrees, for employment a period of three (3) years from the Closing Date, not to, and to cause its Subsidiaries not to, establish a business or employ Persons with the intent of competing with the development, marketing, selling or provision of one or more products or services (individually or as a bundle) consisting of (i) investment products research and/or due diligence, (ii) desktop asset management application, (iii) performance reporting, and (iv) any investment advisory services to the wealth management industry, other than in any other capacity each of the preceding clauses (including i)-(iv) as an independent contractor relates to the corporate, not-for-profit, employee force-out, or consultantgovernmental retirement plan markets (a “Matrix Competing Business”); provided, however, that the foregoing this provision shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree thatprohibit Matrix from: (i) such determination shall not affect the validity acquiring a company or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person business that is an Affiliate of a party Matrix Competing Business, if such Matrix Competing Business comprises one-quarter or less of the total revenues of such company or business; or (ii) continuing to conduct the businesses in which Matrix and its subsidiaries (other than Prima) are engaged in as of the date of this Agreement, including without limitation the continued development, marketing and provision of the RetireTool(k)it suite of products. For these purposes, ownership of securities of five percent (5%) or less of any class of securities of a company engaged in a Competing Business or Matrix Competing Business, as applicable, shall not be considered to be a Competing Business or Matrix Competing Business, for purposes of this Section 6.7(c). Furthermore, Matrix and Broadridge (pursuant to its separate joinder to this Agreement) each hereby covenants and agrees, for a period of three (3) years from the Closing Date, not to, and to cause each of its respective Subsidiaries not to, induce or attempt to induce any client of Company or Company Subsidiary set forth on Exhibit 6.7(c)-2 to cease doing business with Company or Company Subsidiary as set forth opposite such client’s name on such Exhibit, or in any way divert or attempt to divert the provision of such services to any such client away from Company or Company Subsidiary.
(d) Each Seller hereby covenants and agrees, for a period of two (2) years from the Closing Date (“Sellers Non Solicitation Period”), not to, and to cause its Subsidiaries not to, directly or indirectly (A) induce or attempt to induce any individual employed by Company or Company Subsidiary as of the Closing Date or (B) hire, within twelve months following the date of termination of such person’s employment with Company, Company Subsidiary, Purchaser or any of Purchaser’s Affiliates, any person who was an employee of Company, Company Subsidiary, Purchaser or any of Purchaser’s Affiliates (x) at any time during the year prior to the date hereof or (y) during the Sellers Non Solicitation Period. Notwithstanding the foregoing, nothing in this Agreement if will prevent any Seller from (x) hiring any Person who was employed at any time by Company, Company Subsidiary, Purchaser or any of Purchaser’s Affiliates and whose employment was terminated by such employing Person ceases following the Closing or (y) hiring any employee of any such employing Person who makes an unsolicited approach to such Seller seeking employment in response to the general advertisement or other public announcement of a job opening.
(e) Purchaser agrees that (i) the covenants set forth in Sections 6.7(a) and 6.7(b) are reasonable in temporal and geographical scope and in all other respects, and (ii) the covenants contained therein have been made in order to induce the Sellers and Purchaser to enter into this Agreement. Sellers and Purchaser intend that the covenants of Sections 6.7(a) and 6.7(b) shall be deemed to be an Affiliate a series of separate covenants, one for each month of the relevant period of restriction.
(f) Each Seller agrees that (i) the covenants set forth in Sections 6.7(c) and 6.7(d) are reasonable in temporal and geographical scope and in all other respects, and (ii) the covenants contained therein have been made in order to induce the Sellers and Purchaser to enter into this Agreement.
(g) If, at the time of enforcement of Section 6.7(a), 6.7(b), 6.7(c) or 6.7(d) a court shall hold that the duration or scope stated herein are unreasonable under circumstances then existing, the parties agree that the maximum duration or scope under such partycircumstances shall be substituted for the stated duration or scope and that the court shall be allowed to revise the restrictions contained herein to cover the maximum period and scope permitted by law.
(h) Purchaser recognizes and affirms that in the event of its breach of any provision of Section 6.7(a) or 6.7(b), money damages would be inadequate and Matrix would not have adequate remedy at law. Accordingly, Purchaser agrees that in the event of a breach or a threatened breach of any of the provisions of Section 6.7(a) or 6.7(b), Matrix, in addition and supplementary to other rights and remedies existing in its favor, may apply to any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any violations of the provisions thereof (without posting a bond or other security). In addition, in the event of a breach or violation of Section 6.7(a) or 6.7(b), the relevant period of restriction shall be tolled until such breach or violation has been duly cured.
(i) Each Seller recognizes and affirms that in the event of its breach of any provision of Section 6.7(c) or 6.7(d), money damages would be inadequate and Purchaser would have not adequate remedy at law. Accordingly, each Seller agrees that in the event of a breach or a threatened breach of any of the provisions of Section 6.7(c) or 6.7(d), Purchaser, in addition and supplementary to other rights and remedies existing in its favor, may apply to any court of law or equity of competent jurisdiction for specific performance and/or injunctive or other relief in order to enforce or prevent any violations of the provisions thereof (without posting a bond or other security). In addition, in the event of a breach or violation of Section 6.7(c) or 6.7(d), the relevant period of restriction shall be tolled until such breach or violation has been duly cured.
(j) Purchaser acknowledges that its covenants in this Section 6.7 are a material inducement to Matrix to enter into this Agreement and consummate the transactions contemplated hereby, and each Seller acknowledges and agrees that its covenants in this Section 6.7 are a material inducement to Purchaser to enter into this Agreement and consummate the transactions contemplated hereby.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Envestnet, Inc.)
Non-Solicitation. 11.1 The Company undertakes to the Acquirer that, without the express prior written consent of the Acquirer, prior to the Effective Date it shall:
(a) During the period beginning on the Closing Date not, and ending on the 18-month anniversary it shall procure that no member of the Closing DateGroup, and except or any of its or their Representatives (acting in their capacity as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”such) shall not, directly or indirectlyshall:
(i) Induce, directly or indirectly solicit or encourage, or attempt (save to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and extent that the Transferred Subsidiaries as fiduciary duties of the Closing Date (the “Restricted Services”Company Directors are considered by them to so require, and only in response to an unsolicited approach) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case encourage any person other than as the Acquirer to make or be involved in a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted CustomersCompeting Proposal; or
(ii) Solicit, hire or attempt to solicit or hire indicate the basis on which any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to Competing Proposal might be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.made;
(b) Purchaser agrees not directly or indirectly (save to the extent that the fiduciary duties of the Company Directors are considered by them to so require and only in response to an unsolicited approach), and shall procure that no member of the Group and none of the Company’s Representatives (acting in their capacity as such) shall, from the date hereof until the 18-month anniversary of the Closing Date it shall notthis Agreement enter into any discussions or negotiations with, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not or provide any information to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates person who is not considering making or being involved in a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.Competing Proposal;
(c) The parties acknowledge terminate any discussions or negotiations relating to a Competing Proposal in which it is currently engaged and procure that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement all members of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel Group and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If Company’s Representatives terminate any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdictiondiscussions they are engaged in; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.and
(d) The parties hereby acknowledge promptly inform the Acquirer of any Competing Proposal including the identity of the Third Party and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific any proposed terms and that any breach of this Section 7.7 by disclosed to the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right Company or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 the Company’s Representative by a decree Third Party in respect of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertakinga Competing Proposal.
11.2 The Company undertakes that the Directors will not recommend any Third Party Competing Proposal unless the Competing Proposal is a considered by them in the exercise of their fiduciary duty to be a Superior Competing Proposal.
11.3 If, notwithstanding the provisions of Clauses 11.1 and 11.2 above, a Third Party makes a Competing Proposal either publicly or to the Company or the Company’s Representatives, and the Company Directors consider it to be a Superior Competing Proposal which they intend to recommend, the Company and/or the Company’s Representatives will notify the Acquirer in writing of the terms of the Superior Competing Proposal and the identity of the Third Party making such proposal and will procure that the Directors will not withdraw or adversely modify its recommendation of the Acquisition unless:
(ea) the Acquirer notifies the Company that it is not willing to revise the terms of the Consideration to exceed that of the Superior Competing Proposal in the view of the Company Board in the exercise of its fiduciary duty; or
(b) the Acquirer does not, within 72 hours of being notified in writing of the terms of the Superior Competing Proposal, notify the Company or the Company’s Representatives that it will revise the terms of the Consideration to exceed that of the Superior Competing Proposal in the view of the Company Board in the exercise of its fiduciary duty; or
(c) the Acquirer, having confirmed within 72 hours of being notified in writing of the terms of the Superior Competing Proposal, that it will revise the terms of the Consideration to exceed that of the Superior Competing Proposal in the view of the Company Board in the exercise of its fiduciary duty, fails within 120 hours of receipt of notice of the Superior Competing Proposal to announce the terms of its increased Consideration in respect of the Acquisition. For the avoidance of doubt, none these non-solicitation and matching right provisions contained in Clauses 11.1, 11.2 and 11.3 will recur and subsist should numerous Superior Competing Proposals be made unless and until the provisions of the restrictions imposed by applicable subsections any of this Section 7.7 shall apply Clause 11.3(a) to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party11.3(c) are met.
Appears in 2 contracts
Sources: Implementation Agreement (MKS Instruments Inc), Implementation Agreement (Atotech LTD)
Non-Solicitation. (a) During In exchange for the Company providing the Grantee the consideration set forth herein and other confidential information, during the Grantee's employment with the Company and for a period beginning on of one year after the Closing Date and ending on the 18-month anniversary separation of the Closing Date, and except as otherwise required or permitted by such employment for any Ancillary Agreement, Seller and its Affiliates (collectivelyreason, the “Restricted Entities”) shall notGrantee hereby agrees not to, either directly or indirectly:
: (i) Inducesolicit the employment of, solicit recruit, employ, hire, cause to be employed or encouragehired, entice away, or attempt to induce, solicit establish a business with any person whom the Grantee had contact with or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions job-related information about in the course of normal hiring practices which are not specifically sent tosuch person's employment or other relationship with the Company, or do suggest to or discuss with any such person the discontinuation of that person's status or employment with the Company; or (ii) on behalf of any person or entity engaged in the same or similar business as the Company, call on, service, solicit, or accept competing business from the Company's customers or prospective customers whom or which the Grantee, within the previous two (2) years, had or made contact with regarding the Company's business or had access to the Company's information or files about such customer or prospective customer.
(b) To the extent that any provision of this Section 10 shall be determined to be invalid or unenforceable in any respect or to any extent, the provision shall not specifically targetbe void or rendered invalid, Continuing Employees but instead shall be automatically amended for such lesser term, to such lesser extent, or hiring in such other lesser degree, as will grant the Company the maximum protection and restrictions on the Grantee's activities permitted by applicable law in such circumstances. If the Grantee violates a non-solicitation provision described above and the Company brings legal action for injunctive relief, the Company shall not, as a result of such postingbreach or the time involved in obtaining the relief, (3be deprived of the benefit of the full period of the provision(s) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitationsviolated. Accordingly, or (4the provision(s) individual who approaches a Restricted Entity seeking shall be deemed to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that effect for the duration specified therein, computed from the date hereof until the 18-month anniversary relief is granted but not to include any period of time during which the Grantee is in violation of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultantprovision(s); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that Company's right to enforce the covenants set forth in terms of this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that 10 shall not be affected by performance the existence or nonperformance non-existence of any other provision similar agreement for anyone else, or by the Company's failure to fully enforce, or enforce at all, the terms of any other such agreement. The provisions of this Section 10 are in addition to and not in lieu of, and do not supersede, cancel or replace, (i) any agreement regarding non-solicitation or non-recruitment of customers, consultants or employees previously or subsequently signed by the Grantee, or (ii) any provisions of an existing agreement regarding any such subjects. Likewise, this Agreement does not alter or amend the terms of any existing agreement between the Company and the Grantee concerning employment, and such agreement shall not operate to preclude the enforcement (or cancel the terms) of this Agreement. In case of any conflict between the terms of this Agreement and the terms of any such agreement concerning employment, the terms of that agreement shall not operate to cancel, supersede or preclude the enforcement of the terms of this Agreement. The existence terms of any claim or cause of action against one party by the other party, whether predicated on the breach of such agreement shall be construed and enforced without reference to this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after unless such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under agreement references this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches specifically or threatened breaches of this Section 7.7, without posting any bond or other undertakinggenerally.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Performance Share Award Agreement (LegacyTexas Financial Group, Inc.), Performance Share Award Agreement (LegacyTexas Financial Group, Inc.)
Non-Solicitation. (a) During In furtherance of the consideration being paid by the Purchaser to the Seller hereunder and the Goodwill, (i) Dow agrees that, during the period beginning on the Closing Date and ending on the 18-month second anniversary of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (such period, the “Restricted ServicesPeriod”) ), Dow shall not, whether directly or (2) reduceindirectly, terminate or adversely modify solicit the employment of any employee of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit Business or hire any Continuing Employee current employee (or any employee who was employed by the Business for any type of employment or in any other capacity (including as an independent contractor or consultantwithin the six-month period prior to the Closing) with a Restricted Entityof the Business without the prior written consent of the Purchaser; provided, however, that the foregoing nothing herein shall prohibit Dow from making general solicitation advertisements that are not apply targeted at such employees and from hiring any such employee that responds to any (1) individual such general solicitation advertisements or whose employment or service was has been terminated by the Companies ▇▇▇▇▇▇ Holdcos or the Transferred ▇▇▇▇▇▇ Subsidiaries; and (ii) the Purchaser and each ▇▇▇▇▇▇ Holdco agree that, (2) publishing or posting of open positions in during the course of normal hiring practices which are not specifically sent toRestricted Period, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) the Purchaser agrees that from and the date hereof until the 18-month anniversary of the Closing Date it ▇▇▇▇▇▇ Holdcos shall not, and shall cause its Affiliates (including each member of the Companies and the Transferred Subsidiaries) ▇▇▇▇▇▇ Group not to, whether directly or indirectly, solicit, hire solicit the employment of any employee of Dow or attempt to solicit its Subsidiaries or hire any current employee of Seller (or any employee who was employed by for any type of employment within the six-month period prior to the Closing) of Dow or its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant)Subsidiaries without the prior written consent of Dow; provided, however, that nothing herein shall prohibit the foregoing shall Purchaser or the ▇▇▇▇▇▇ Holdcos from making general solicitation advertisements that are not apply targeted at such employees and from hiring any such employee that responds to any (i) individual such general solicitation advertisements or whose employment or service was has been terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitationsDow.
(cb) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation hereto agree that in the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of event a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions declares there has been a breach by either party of this Section 7.7 in 5.15, the term of any situation in any jurisdiction; (ii) the offending such term or provision covenant so breached shall be reformed rather than voided and automatically extended for the court or Governmental Authority making such determination shall have non-breaching party for the power to reduce the scope, duration or geographical area period of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention time of the invalid or unenforceable provision, in order to render violation from the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to date on which such party may be entitled, at law breach ceases or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 from the date of the entry by a decree court of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate competent jurisdiction of a party to this Agreement if final non-appealable Governmental Order enforcing such Person ceases to be an Affiliate of such partycovenant, whichever is later.
Appears in 2 contracts
Sources: Sale and Purchase Agreement, Sale and Purchase Agreement (Trinseo S.A.)
Non-Solicitation. (ai) During As a separate and independent covenant, the period beginning on Executive agrees that he shall not during his employment with the Closing Company and for three (3) years after the Termination Date and ending on or the 18-month anniversary of the Closing Expiration Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates whichever occurs first (collectively, the “Restricted EntitiesNon-Solicitation Restrictive Period”) shall not), directly or indirectly:
(iA) Inducecontact, solicit or encouragesolicit, perform services for, or attempt to induce, solicit accept work or encourage, business (in any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case capacity other than as a consequence Company employee) from any clients or customers of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customersthe Company, its subsidiaries or affiliates, with whom the Executive has worked or had contact during the Executive’s employment with the Company, or of whom the Executive had knowledge of due to his employment or access to the Company’s confidential information and/or trade secrets;
(B) contact, solicit or accept contact from any clients, subcontractors, consultants, vendors, suppliers or independent contractors of the Company, its subsidiaries or affiliates, for the purpose of interfering with, causing, inviting, or encouraging any such persons or entities from altering or terminating their business relationship or association with the Company, its subsidiaries or affiliates. This applies to any clients, subcontractors, consultants, vendors, suppliers or independent contractors with whom the Executive has worked or had contact during his employment with the Company, or of whom the Executive had knowledge due to his employment or access to the Company’s confidential information and/or trade secrets; or
(iiC) Solicitcontact, hire or attempt to solicit or hire accept contact from any Continuing Employee employee of the Company, its subsidiaries or affiliates for the purpose of interfering with their employment with the Company, its subsidiaries or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent toaffiliates, or do not specifically targetinviting or encouraging them to terminate their employment with the Company, Continuing Employees its subsidiaries or hiring as a result affiliates or which has the effect of such postingaltering or terminating their employment with the Company, (3) solicitations made by third-party search firms that have not been directed by Seller its subsidiaries or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individualaffiliates.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in If the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth Executive breaches any covenant contained in this Section 7.7 are an essential element 6(b), the Executive agrees and acknowledges that the Non-Solicitation Restrictive Period shall be extended during the time of this Agreement such breach. The Executive further agrees and acknowledges that, but for in the agreement event of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance Executive’s breach of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree 6(b), the Non-Solicitation Restrictive Period may be extended for up to three (3) years, which shall commence upon either (x) a determination by the Company that the covenants set forth in this Section 7.7 are reasonable and proper in scopeExecutive has stopped breaching such covenants, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by (y) the date of a court’s or arbitrator’s final determination of that the Executive breached a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision covenant contained in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified6(b).
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Employment Agreement (B/E Aerospace Inc), Employment Agreement (Be Aerospace Inc)
Non-Solicitation. (a) During the period beginning on the Closing Date and ending on the 18-month anniversary of the Closing DateExcept as set forth in Section 5.5, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser Buyer agrees that for a period of twelve (12) months from the date hereof until the 18-month anniversary of and after the Closing Date it shall not, and it shall cause its Affiliates subsidiaries not to (including and shall not encourage or assist any of its affiliates to), without the Companies and the Transferred Subsidiaries) not toprior written consent of Seller, directly or indirectly, solicitsolicit to hire (or cause or seek to cause to leave the employ of Seller or any of its Subsidiaries) (i) any Product Employee or (ii) any Person employed by Seller or any of its Subsidiaries who became known to or was identified to Buyer or any of its affiliates in connection with the transactions contemplated by this Agreement prior to the Closing, hire or attempt unless such Person ceased to solicit or hire any be an employee of Seller or any of its Affiliates who is Subsidiaries prior to such action by Buyer or any of its subsidiaries, or, in the case of such Person’s voluntary termination of employment with Seller or any of its Subsidiaries, at least three (3) months prior to such action by Buyer or any of its subsidiaries.
(b) Seller agrees that for a period of twelve (12) months from and after the Closing Date it shall not, and it shall cause each of its Subsidiaries not a Continuing Employee for employment or in any other capacity to (including as an independent contractor or consultant); provided, however, that the foregoing and shall not apply encourage or assist any of its affiliates to), without the prior written consent of Buyer, directly or indirectly, solicit to hire (or cause or seek to cause to leave the employ of Buyer or any of its subsidiaries) (i) individual whose employment any Transferred Employee or service (ii) any Person employed by Buyer or any of its subsidiaries who became known to or was terminated identified to Seller or any of its affiliates in connection with the transactions contemplated by this Agreement prior to the Closing, unless such Person ceased to be an employee of Buyer or any of its subsidiaries prior to such action by Seller or any of its AffiliatesSubsidiaries, (ii) publishing or posting of open positions or, in the course case of normal hiring practices which are not specifically sent tosuch Person’s voluntary termination of employment with Buyer or any of its subsidiaries, or do not specifically target, employees of at least three (3) months prior to such action by Seller or any of its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that Notwithstanding the covenants foregoing, the restrictions set forth in this Section 7.7 are an essential element of this Agreement 5.6(a) and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that 5.6(b) shall not be affected apply to bona fide public advertisements for employment placed by performance or nonperformance any party and not specifically targeted at the employees of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Integrated Device Technology Inc), Asset Purchase Agreement (Netlogic Microsystems Inc)
Non-Solicitation. The Optionee covenants and agrees that during the Optionee’s Employment and for a period of twenty-four (a24) During months (and such period shall be tolled on a day-to-day basis for each day during which the period beginning on the Closing Date and ending on the 18-month anniversary Optionee participates in any activity in violation of the Closing Daterestrictions set forth in this Section 5(b)) after the termination of the Optionee’s Employment, and except as otherwise required whether such termination occurs at the insistence of the Company or permitted by any Ancillary Agreement, Seller and its Affiliates the Optionee (collectivelyfor whatever reason), the “Restricted Entities”) Optionee shall not, directly or indirectly:
and shall not assist any other Person to, (i) Induce, hire or solicit or encourage, or attempt to induce, solicit or encourage, for hire any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as employee of the Closing Date (the “Restricted Services”) Company or (2) reduce, terminate any of its Immediate Affiliates or adversely modify the employment seek to persuade any employee of the Companies Company or the Transferred Subsidiaries for such services, in each case other than as a consequence any of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
its Immediate Affiliates to discontinue employment or (ii) Solicit, hire or attempt to solicit or hire encourage any Continuing Employee for employment or in any other capacity (including as an independent contractor providing services to the Company or consultant) any of its Immediate Affiliates to terminate or diminish its relationship with a Restricted Entitythem; provided, however, that after termination of the foregoing Optionee’s Employment, these restrictions shall apply only with respect to employees of, and independent contractors providing services to, the Company or one of its Immediate Affiliates who were such on the date that the Optionee’s Employment terminated or at any time during the nine (9) months immediately preceding such termination date; and, provided further, that this Section 5(b) shall not apply to be violated by (x) any (1) individual whose employment general advertising or service was terminated other general methods of solicitation by the Companies another company or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are search firm not specifically sent to, directed at the employees or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary contractors of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller Company or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Immediate Affiliates or hiring as a result of (y) any such postinghiring, solicitation or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance encouragement of any other provision of this Agreement. The existence of any claim employee or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement independent contractors of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court Company or any other Governmental Authority of competent jurisdictionits Immediate Affiliates below the level of director, Seller and Purchaser agree that: (i) so long as you had no direct or indirect involvement in such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedactivities.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Employment Agreement (Michaels Companies, Inc.), Non Statutory Stock Option Agreement (Michaels Companies, Inc.)
Non-Solicitation. (a) During the period beginning on the Closing Date and ending on the 18-month anniversary of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it BSC shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, without the prior written consent of the Purchaser or except as expressly provided in any Ancillary Agreement, for a period of 18 months from the applicable Employee Transfer Date, directly or indirectly, solicit, hire or attempt to solicit for employment or hire any employee Transferred Employee whose employment was transferred as of Seller such Employee Transfer Date; provided that (i) BSC and its Affiliates are not prohibited from employing any such person who contacts BSC or any such Affiliate on his or her own initiative and without any direct or indirect solicitation by BSC or such Affiliate, and (ii) the term “solicit for employment” shall not be deemed to include general solicitations of employment not specifically directed toward any such Person.
(b) The Purchaser shall not, and shall cause its Affiliates not to, without the prior written consent of BSC or except as expressly provided in any Ancillary Agreement, for a period of (x) except as otherwise provided in clause (y) below, 18 months from the Closing Date in the case of clause (I) below and 12 months from the Closing Date in the case of clause (II) below, directly or indirectly, solicit for employment or hire any individual who is employed by BSC or any of its Affiliates who is not a Continuing Employee for employment as of the date hereof (or in at any other capacity time during such period) and (including as an independent contractor I) becomes known to the Purchaser or consultant); providedany of its Affiliates or any officer, howeverdirector, that employee, agent or advisor of the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller Purchaser or its Affiliates or hiring as a result of such postingthe transactions contemplated by this Agreement or the Ancillary Agreements or (II) is recommended as a potential employee of the Purchaser or any of its Affiliates (who, when hired, would be classified as a Manager or above in the Purchaser’s human resources system) by any of the individuals who received a Special Retention Bonus Program Participation Notice as described in Section 6.03 of the Disclosure Schedule, to the individual with responsibility for hiring decisions on behalf of the Purchaser or any of its Affiliates or (y) 18 months from the Cork Manufacturing Transfer Date, the Fremont Manufacturing Transfer Date or the West Valley Manufacturing Transfer Date (as applicable), directly or indirectly, solicit for employment or hire any individual (other than the Transferred Employees) who (A) is employed in the Cork Facility or the Fremont manufacturing facility by BSC or any of its Affiliates as of the Cork Manufacturing Transfer Date or the Fremont Manufacturing Transfer Date, respectively, or (iiiB) solicitations made was employed in the West Valley Facility prior to the West Valley Manufacturing Transfer Date and is employed elsewhere by third-party search firms that have not been directed by Purchaser BSC or any of its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree West Valley Manufacturing Transfer Date; provided that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) the Purchaser and its Affiliates are not prohibited from employing any such determination shall not affect person who contacts the validity Purchaser or enforceability of (1) any such Affiliate on his or her own initiative and without any direct or indirect solicitation by the offending term Purchaser or provision in any other situation or in any other jurisdiction or (2) the remaining terms such Affiliate, and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term “solicit for employment” or provision “solicitation” shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition deemed to include general solicitations of employment not specifically directed toward any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertakingperson.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Sale and Purchase Agreement (Stryker Corp), Sale and Purchase Agreement (Boston Scientific Corp)
Non-Solicitation. (a) During The Sellers’ Representative agrees that, for the period beginning commencing on the Closing Date and ending expiring on the 18third (3rd) anniversary thereof, neither it nor any other member of the Sellers’ Group shall (without the consent of the Purchasers’ Representative) directly or indirectly (i) induce or encourage any Transferred Employee to leave his position of employment with the Purchasers’ Group or to accept any other position or employment, (ii) solicit for employment or any similar arrangement any Transferred Employee, or (iii) hire or assist any other person in hiring any Transferred Employee; provided, however, that this Section 5.20(a) (Non-month Solicitation) shall not apply to Transferred Employees who have not been employed by any member of the Purchasers’ Group at any time during the six (6) months prior to the applicable inducing, encouraging, soliciting or hiring and the provisions of this Section 5.20(a) (Non-Solicitation) shall not prohibit general solicitations for employment through advertisements not specifically directed at Transferred Employees.
(b) The Purchasers’ Representative agrees that, for the period commencing on the date hereof and expiring on the third (3rd) anniversary of the Closing Date, and except as otherwise required or permitted by neither it nor any Ancillary Agreement, Seller and its Affiliates other member of the Purchasers’ Group shall (collectively, without the “Restricted Entities”consent of the Sellers’ Representative) shall not, directly or indirectly:
indirectly (i) Induceinduce or encourage any BBVA Employee to leave his position of employment with the Sellers’ Group or to accept any other position or employment, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any similar arrangement any BBVA Employee, or (iii) hire or assist any other capacity (including as an independent contractor or consultant) with a Restricted Entityperson in hiring any BBVA Employee; provided, however, that the foregoing this Section 5.20(b) (Non-Solicitation) shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing BBVA Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that who have not been directed employed by Seller or its Affiliates a member of the Sellers’ Group at any time during the six (6) months prior to specifically solicit such individuals the applicable inducing, encouraging, soliciting or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiariesprovisions of this Section 5.20(b) (Non-Solicitation) shall not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee prohibit general solicitations for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are through advertisements not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitationsat BBVA Employees.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions For purposes of this Section 7.7 in any situation in any jurisdiction; 5.20 (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.Non-Solicitation):
Appears in 2 contracts
Sources: Transaction Agreement (Metlife Inc), Transaction Agreement (Banco Bilbao Vizcaya Argentaria, S.A.)
Non-Solicitation. (a) During So long as SFI or any of its subsidiaries is the Servicer or otherwise performing services pursuant to the Servicing Agreement and for a period beginning on the Closing Date and ending on the 18-month anniversary of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or two (2) reduceyears thereafter, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller Member or any of its Affiliates who that receives or otherwise obtains any Confidential Information, or any director, officer, manager or employee of any of the foregoing in their capacity as such (collectively, other than any such Person that is not a Continuing Employee for controlled directly or indirectly by Springleaf and acting on behalf of Springleaf, the “Restricted Parties”) shall (i) directly or indirectly solicit the employment or engagement of services of any person or (ii) employ, hire, contract with or otherwise engage any person, who in any other capacity case of clauses (including i) and (ii), is or was employed as an independent employee, consultant or contractor of Servicer, Subservicer (as such term is defined in the Servicing Agreement) or consultantany of their respective subsidiaries during the term of the Servicing Agreement (the “Non-Solicitation Obligations”); provided, however, that the foregoing this Section 3.6(a) shall not apply be deemed to any (iA) individual whose prohibit a general solicitation of employment not directed solely at an employee, consultant or service was terminated by Seller or its Affiliatescontractor of Servicer, (iiB) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or prohibit a Restricted Party from hiring as an employee, contracting with or retaining as a result consultant a person who has not been employed by or contracted or consulted with Servicer or any Subservicer or any of their respective subsidiaries at any time during the 12 months prior to the date such postingMember or Affiliate hires, contracts with or retains as a consultant such person or (iiiC) solicitations made by third-party search firms that have not been directed by Purchaser prohibit the Restricted Parties from hiring any person who responds to a general solicitation permitted hereunder or its Affiliates (including who contacts a Restricted Party on his or her own initiative without any encouragement from a Restricted Party. The obligations of the Companies and the Transferred Subsidiaries) to specifically solicit such individuals Restricted Parties under this Section 3.6 shall be binding upon any transferee of a Member of or hiring as a result of such solicitationsRestricted Party.
(cb) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement Each Member shall comply with, and that, but for the agreement of each party shall cause its Affiliates and Restricted Parties to comply with these covenantswith, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedNon-Solicitation Obligations.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Springleaf Holdings, LLC), Limited Liability Company Agreement (New Residential Investment Corp.)
Non-Solicitation. (a) During Seller Parent, the Other Sellers and Seller agree that for a period beginning on of two (2) years from and after the Closing Date and ending on the 18-month anniversary of the Closing Dateit shall not, and except as otherwise required it shall cause each of their Subsidiaries not to (and shall not encourage or permitted by assist any Ancillary Agreement, Seller and of its Affiliates (collectivelyto), without the “Restricted Entities”) shall notprior written consent of Purchaser, directly or indirectly:
, solicit to hire (or cause or seek to cause to leave the employ of Purchaser or any of its Subsidiaries) (i) Induceany Transferred Employee or (ii) any other Person employed by Purchaser who became known to or was identified to the Seller Parent, solicit Other Sellers or encourage, Seller or attempt any of their Affiliates prior to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (in connection with the “Restricted Services”) or (2) reducetransactions contemplated by this Agreement, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, unless in each case other than as a consequence such Person ceased to be an employee of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire Purchaser or attempt its Subsidiaries prior to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated such action by the Companies Seller Parent, Other Sellers or Seller or any of their Affiliates, or, in the Transferred case of such Person’s voluntary termination of employment with Purchaser or any of its Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, at least three (3) solicitations made months prior to such action by third-party search firms that have not been directed by the Seller Parent, Other Sellers or Seller or any of their Affiliates. Seller Parent agrees, upon the reasonable request of Purchaser, to use its commercially reasonable efforts to cause its Affiliates to specifically solicit such individuals or hiring as a result enforce their rights for the benefit of Purchaser under the non-solicitation provisions of the Semiconductor Business Purchase Agreement; provided that all costs and expenses incurred in connection with the enforcement of such solicitations, or (4) individual who approaches a Restricted Entity seeking to rights shall be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individualborne exclusively by Seller Parent.
(b) Purchaser agrees that for a period of two (2) years from the date hereof until the 18-month anniversary of and after the Closing Date it shall not, and it shall cause its Subsidiaries not to (and shall not encourage or assist any of its Affiliates (including to), without the Companies and the Transferred Subsidiaries) not toprior written consent of Seller, directly or indirectly, solicit, solicit to hire (or attempt cause or seek to solicit cause to leave the employ of the Other Sellers or hire any employee of Seller or any of their Affiliates) any Person that it or they know to be employed by the Other Sellers or Seller or any of their Affiliates as of the Closing Date unless such Person ceased to be an employee of the Other Sellers or Seller or any of their Affiliates prior to such action by Purchaser or any of its Affiliates Subsidiaries, or, in the case of such Person’s voluntary termination of employment with the Other Sellers or Seller or any of their Affiliates, at least three (3) months prior to such action by Purchaser or any of its Subsidiaries.
(c) Notwithstanding the foregoing, the restrictions set forth in Sections 6.10(a) and 6.10(b) shall not apply to (i) bona fide public advertisements for employment placed by any Party and not specifically targeted at the employees of any other Party, or (ii) any employee who is not a Continuing Employee for employment manager or an individual contributor who is engaged in any other capacity (including as an independent contractor the design of Printer Products or consultant); provided, however, that the foregoing processes. Section 6.10(a) shall not apply to any (i) individual whose employment Person who is hired by the Other Sellers or service was terminated by Seller or its Affiliates, any of their Affiliates (iiA) publishing pursuant to any existing agreement with employee representatives (such as a works council agreement) by which the Other Sellers or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its any of their Affiliates is bound or hiring (B) as a result of such posting, actions required to be taken by the Other Sellers or (iii) solicitations made by third-party search firms that have not been directed by Purchaser Seller or its any of their Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party order to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedlocal employment Laws.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Avago Technologies LTD), Purchase and Sale Agreement (Marvell Technology Group LTD)
Non-Solicitation. (a) During the Executive’s employment with Holdings and for a period beginning on of twelve (12) months thereafter (the Closing Date and ending on the 18“Non-month anniversary of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectivelySolicitation Period”), the “Restricted Entities”) Executive shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as except with prior written approval of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not toCEO, directly or indirectly, solicitindividually or as part of or on behalf of any other person, hire company, employer or other entity:
(a) (i) persuade or attempt to solicit persuade any existing customer or hire any employee of Seller agent with which the Company has a contract (“Contracted Customer”) to cease doing business constituting the Prohibited Business with the Company or any of its Affiliates who subsidiaries, or to reduce the amount of business constituting the Prohibited Business any customer or agent does with the Company or any of its subsidiaries, or (ii) solicit for himself or any entity any business constituting the Prohibited Business of a Contracted Customer of the Company or any of its subsidiaries or solicit any business constituting the Prohibited Business which was a Contracted Customer of the Company or with which the Executive is not aware (or is made aware prior to the Termination Date) that the Company is in direct discussions as a Continuing Employee prospective Contracted Customer of the Company (or any of their subsidiaries) within twelve (12) months prior to the Termination Date; or
(b) hire, attempt to recruit or solicit for employment hire, or for any purpose whatsoever encourage to end or abandon their employment, reduce or diminish in any way their relationship or breach any agreement, with the Company or any of its subsidiaries, any persons who have been employed by the Company or any of its subsidiaries at any time within the twelve (12) months prior to such hiring, recruitment or solicitation, other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any than (i) individual any such employee whose employment with the Company or service was any of its subsidiaries is terminated by Seller the Company or any of its Affiliatessubsidiaries, or (ii) publishing any such employee who voluntarily terminates his or posting her employment with the Company or any of open positions in its subsidiaries, so long as the course of normal hiring practices which are Executive did not specifically sent to, induce or do not specifically target, employees of Seller encourage such employee so to voluntarily terminate his or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) her employment. The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants restrictions contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (iSections 10(b) such determination shall will not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such partygeneral advertisements or solicitations for employees.
Appears in 2 contracts
Sources: Employment Agreement (Trustwave Holdings, Inc.), Employment Agreement (Trustwave Holdings, Inc.)
Non-Solicitation. (a) During The Employee hereby agrees and covenants that, during the period beginning on Term, the Closing Date and ending on Employee will not, without the 18-month anniversary prior written consent of the Closing Date, Company (such consent to be given in the Company’s sole and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”absolute discretion) shall not, directly or indirectly:
(a) (i) Inducesolicit, solicit knowingly encourage or encourageinduce, or attempt to solicit, knowingly encourage or induce, solicit or encourage, any Restricted Customer to (1) use member of a Restricted Entity to provide any services which are offered health plan sponsored by the Companies and the Transferred Company or its Subsidiaries as of the Closing Date (Effective Time, to cease doing business with the “Restricted Services”) Company or any of its Subsidiaries with respect to the Business within the Territory; or (2ii) reduceotherwise knowingly interfere with, terminate impair or adversely modify damage the employment Company’s or its Subsidiaries’ relationship with any member or prospective member of any such plans;
(b) solicit, knowingly encourage or induce, or attempt to solicit, knowingly encourage or induce, any Providers, suppliers, licensees or business relations, or prospective Providers, suppliers, licensees or business relations with whom the Companies Company or the Transferred its Subsidiaries for such serviceswas engaged in a contractual relationship, or substantive discussions or proposal negotiations, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customersthe Effective Time, with respect to the Business of the Company and its Subsidiaries to cease doing business with the Company or its Subsidiaries with respect to the Business within the Territory; or (ii) otherwise knowingly interfere with, impair or damage the Company’s or its Subsidiaries’ relationship with any Provider, supplier, licensee or business relation of the Business; or
(iic) Solicitsolicit, hire encourage or induce, or attempt to solicit or hire any Continuing Employee for employment induce, or in assist any other capacity (including as an Person in so soliciting, encouraging or inducing, any employee, consultant or independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated engaged by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller Company or its Affiliates to specifically solicit such individuals or hiring Subsidiaries as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall notEffective Time to terminate or breach an employment, and shall cause its Affiliates (including contractual or other relationship with the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller Company or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Non Competition, Non Solicitation and Confidentiality Agreement, Non Competition, Non Solicitation and Confidentiality Agreement (Triple-S Management Corp)
Non-Solicitation. (a) During Service Provider agrees and undertakes to Client, for the period beginning on the Closing Date term of this agreement and ending on the 18-month anniversary of the Closing Dateany renewal thereof, and except as otherwise required for a period of one (1) year following its termination, not to solicit, do business with or permitted by attempt to do business with, at any Ancillary Agreementlocation whatsoever, Seller directly or indirectly and its Affiliates (collectivelyin any manner whatsoever, with Client’s client during the “Restricted Entities”) project being conducted. Also, Service Provider shall notnot solicit or hire in any way, directly or indirectly:
(i) Induce, solicit as an employee, consultant or encourage, or attempt to induce, solicit or encourageany other title whatsoever, any Restricted Customer to of the employees, directors, executives or other people (hereafter collectively the “Employees” for the purposes of this article) working full or part time for Client (or Client’s client) at the time when the period of one (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) year begins or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions having thus worked in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, twelve (312) solicitations made by third-party search firms months preceding that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall nottime, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not in no way will attempt to, directly or indirectly, solicitencourage one or other of said Employees to leave their job. For the purposes of the preceding provisions: Any member of Client’s (of Client’s client’s) personnel who agrees, hire during the above-mentioned period of prohibition, to work or attempt provide any service whatsoever for monetary or other compensation to solicit any person but Client (or hire Client’s client), in which the defaulting Service Provider might have, directly or indirectly, any interest, whether as an owner, investor, shareholder, director, employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in another manner, will be construed to have been solicited; Any person having retained the Client’s services in the two (2) years preceding the start of the abovementioned period of prohibition will be construed to be a client of Client; Service Provider acknowledges that any contravention on its part of this non solicitation agreement will result for it, without prejudice to any other capacity (including as an independent contractor or consultant); providedrights and remedies available to the intermediary, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course imposition of normal hiring practices which are not specifically sent to, or do not specifically target, employees a penalty of Seller or its Affiliates or hiring as a result one thousand dollars ($1,000.00) per day of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including violation of the Companies and performance of the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants obligations set forth in this Section 7.7 are an essential element the provisions of this Agreement articles 8.1 and that8.2 herein. Consequently, but for in the agreement event of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected such failure confirmed by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or by an arbitration board, Service Provider shall give Client the amount of one thousand dollars ($1,000.00) per day of violation of the performance of the obligations, without prejudice to the rights and remedies, Service Provider’s fees, injunction proceedings, damages or any other Governmental Authority remedy related to such a violation or threat of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall violation. The non-solicitation clause is not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that mandatory but strongly recommended. It is valid and enforceable and that comes closest to expressing the intention only given here as an example. It is one of the invalid or unenforceable provision, in order key aspects of the agreement that should be considered to render demonstrate the restrictive covenants set forth in this Section 7.7 enforceable service provider’s integrity to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedclient.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Service Agreement, Service Agreement
Non-Solicitation. (a) During the Seller agrees that during a period beginning on the Closing Date of two (2) years from and ending on the 18-month anniversary of after the Closing Date, and except it will not, in any manner (whether on its own account, as otherwise required an owner, operator, manager, consultant, officer, director, employee, investor, agent or permitted by any Ancillary Agreementotherwise), Seller and or permit its Affiliates (collectivelyin any manner, the “Restricted Entities”) shall not, directly or indirectly:
(i) Inducerecruit, solicit or encourageotherwise attempt to employ any of the Business Employees, or induce or attempt to induce, solicit or encourage, induce any Restricted Customer Business Employee to (1) use a Restricted Entity to provide any services which are offered by leave employment with the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies Buyer or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted EntityCompany; provided, howeverthat, that the foregoing this Section 7.6 shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of prohibit Seller or any of its Affiliates from soliciting or hiring any person who is responds to a general advertisement or solicitation, including but not a Continuing Employee for limited to advertisements or solicitations through newspapers, trade publications, periodicals, radio or internet database, or efforts by any recruiting or employment agencies, not specifically directed at Business Employees or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing intentionally interfere with the relationship between the Company and any employee, customer, sales representative, broker, supplier, licensee or posting other business relation (or any prospective customer, supplier, licensee or other business relationship) of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates Company (including by making any negative or disparaging statements or communications regarding Buyer or the Companies Company or any of their respective operations, officers, directors or investors).
(b) Seller agrees that its obligations under this Section 7.6 are special and unique and that any violation thereof would not be adequately compensated by money damages, and grants the Transferred Subsidiaries) Buyer the right to specifically solicit such individuals or hiring as a result enforce (including injunctive relief where appropriate) the terms of such solicitationsthis Section 7.6.
(c) The parties acknowledge Seller agrees that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants competition contained in this Section 7.7are reasonable and fair in all respects, and are necessary to protect the interests of Buyer. The parties have independently consulted with their respective counsel and after such consultation agree that However, in case any one or more of the covenants set forth provisions or parts of a provision contained in this Section 7.7 are reasonable and proper in scopeshall, durationfor any reason, geographical area and in all other respects. If any such covenant is found be held to be invalid, void illegal or unenforceable in any situation respect in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or part of a provision of this Section or any other jurisdiction, but this Section shall be reformed and construed in any such jurisdiction by as if such invalid or illegal or unenforceable provision or part of a final determination provision had never been contained herein and such provision or part shall be reformed so that it would be valid, legal and enforceable to the maximum extent permitted in such jurisdiction. Without limiting the foregoing, the Parties intend that the covenants and agreements contained in this Section shall be deemed to be a series of separate covenants and agreements. If, in any legal proceeding, a court or any other Governmental Authority of competent jurisdictionarbitrator shall refuse to enforce all the separate covenants and agreements deemed to be included in this Section, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that it is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provisionParties that the covenants and agreements which, if eliminated, would permit the remaining separate covenants and agreements to be enforced in order to render such proceeding shall, for the restrictive covenants set forth in this Section 7.7 enforceable to purpose of such proceeding, be deemed eliminated from the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach provisions of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertakingSection.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Adams Resources & Energy, Inc.)
Non-Solicitation. (a) During the period beginning on the Closing Date and ending on the 18-month anniversary of the Closing DateTerm, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates each Party (collectively, the “Restricted EntitiesHiring Party”) shall not, without the other Party’s consent, directly or indirectly:
, and shall cause its Affiliates (ifor the avoidance of doubt, with respect to Symbotic, excluding C&S and its direct or indirect subsidiaries), employees and other Personnel (in their capacity as such) Inducenot to: (a) solicit for hire, solicit engagement or encourageemployment any employee of the other Party (the “Non-Hiring Party”) or any of its Affiliates with whom the Hiring Party has had contact with in connection with the performance of this Agreement (such employees, “Restricted Employees”); or (b) persuade, induce or attempt to induce, solicit persuade or encourage, induce any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as Employee of the Closing Date (the “Restricted Services”) Non-Hiring Party or (2) reduce, terminate any of its Affiliates to leave his or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for her employment or in engagement with the Non-Hiring Party or any other capacity (including as an independent contractor or consultant) with a Restricted Entityof its Affiliates and to work for the Hiring Party; provided, however, that the foregoing restrictions shall not apply to prohibit (i) any (1) individual whose employment or service was terminated general solicitation by a professional search firm where none of the Companies or the Transferred Subsidiaries, (2) publishing or posting Hiring Party nor any of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit assigned such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted firm to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary Restricted Employees of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller Non-Hiring Party or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant)Affiliates; provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in generalized solicitations by advertising and the course of normal hiring practices which like that are not specifically sent to, directed to any Restricted Employee of the Non-Hiring Party or do not specifically target, employees any of Seller or its Affiliates or hiring as a result of such posting, Affiliates; or (iii) solicitations made of persons no longer employed or engaged by thirdthe Non-party search firms Hiring Party or any of its Affiliates; provided, further, that have the restrictions stated above shall not been directed apply with respect to solicitation by Purchaser or its Affiliates Walmart of an individual who was previously engaged in performing operations work at any Project Site other than Symbotic Personnel in a management role. Notwithstanding the foregoing, after three (including 3) years from the Companies date of Acceptance of all Alpha Systems at a particular Site, Walmart may solicit the automation general manager, assistant automation general manager, and the Transferred Subsidiaries) head maintenance manager that were employed by Symbotic and assigned to specifically solicit such individuals or hiring as a result of such solicitations.
Site (c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.“Permitted Manager
Appears in 2 contracts
Sources: Master Automation Agreement (Symbotic Inc.), Purchase and Sale Agreement (Symbotic Inc.)
Non-Solicitation. (a) During the period beginning Commencing on the Closing Effective Date and ending on continuing for a period of two (2) years after the 18Termination Date (if the Company terminates your employment with or without Cause or you terminate your employment with or without Good Reason) or (ii) one (1) year after the Termination Date (if your employment terminates due to your Disability or the Term expires in accordance with this Agreement after the delivery of a Non-month anniversary of the Closing Date, and except as otherwise required or permitted renewal Notice by any Ancillary Agreement, Seller and its Affiliates either party) (collectively, the “Restricted EntitiesPeriod”) shall ), you will not, directly or indirectly, individually or as a part of or on behalf of any other person, company, employer or other entity:
(i) Induce, solicit or encourage, hire or attempt to induce, solicit or encouragefor hire (other than on behalf of the Company), any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered person who is employed by the Companies and Company within six (6) months prior to such action until at least six (6) months after the Transferred Subsidiaries as of person’s employment with the Closing Date Company ends (the “Restricted ServicesCovered Employee”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers); or
(ii) Solicitsolicit, hire encourage or attempt to solicit persuade any consultant, vendor, client or hire any Continuing Employee for employment customer to terminate or in any other capacity (including as an independent contractor adversely modify its existing relationship with the Company, except during the Term where you are authorized to do so and have a reasonable good faith belief that such termination or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions modification is in the course best interests of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individualthe Company.
(b) Purchaser agrees that from If, during the date hereof until the 18-month anniversary Restricted Period, any Covered Employee accepts employment with any person, company, employer or other entity of which you are an officer, director, employee, partner, shareholder (other than of less than 5% of the Closing Date stock in a publicly traded company) or joint venturer, it shall not, and shall cause its Affiliates will be presumed that the Covered Employee was hired in violation of this provision (including “Presumption”). This Presumption may be overcome by your showing by a preponderance of the Companies and the Transferred Subsidiaries) evidence that you were not to, directly or indirectly, solicit, hire indirectly involved in soliciting or attempt encouraging the Covered Employee to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for leave employment or in any other capacity (including as an independent contractor or consultant); provided, however, that with the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitationsCompany.
(c) The parties acknowledge that You agree to notify any person or entity to which you provide services during the covenants set forth in Restricted Period of the terms of your obligations, if any, under this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement10. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by 10 will entitle the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition Company to any other right an injunction without bond enforcing this Section 10 or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party for breaching Section 10(a) the Company shall be entitled to enforce this Section 7.7 by a decree of specific performance and liquidated damages equal to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none amount of the restrictions imposed by applicable subsections annual total compensation of this any person solicited or hired in breach of Section 7.7 shall apply 10(a). The parties are agreeing to any Person liquidated damages as an option to actual damages in recognition that the Company’s employees are among its most valuable assets, but it is an Affiliate of a party often difficult to this Agreement if prove the actual damages resulting from such Person ceases to be an Affiliate of such partybreach.
Appears in 2 contracts
Sources: Employment Agreement (Allied Capital Corp), Employment Agreement (Allied Capital Corp)
Non-Solicitation. (a) During Employee agrees that during Employee’s employment with the Company and for an additional period beginning on the Closing Date and ending on the 18-month anniversary of the Closing Datetwo (2) years immediately following termination of Employee’s employment with the Company, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) Employee shall not, not directly or indirectly:
(i) Induce, solicit as an individual or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicitdirector, hire or attempt to solicit or hire any Continuing Employee for employment officer, contractor, employee, consultant, partner, investor or in any other capacity with any corporation, partnership or other person or entity, other than the Company (including as an independent contractor "Other Entity"), (i) contact or consultant) communicate with any then current material customer or client of the Company in the Business, or any person or entity with which the Company is then engaged in material discussions regarding that person or entity becoming a Restricted Entityclient or customer of the Company in the Business, for the purpose of inducing any such customer or client to move its account from the Company to another company in the Business; provided, however, that nothing in this sentence shall prevent Employee from becoming employed by or providing consulting services to any such customer or client of the Company in the Business, or (ii) solicit any other employee of the Company for employment or a consulting or other services arrangement with an Other Entity. The restrictions of this Section 3.3 shall not be deemed to prevent Employee from owning not more than 5% of the issued and outstanding shares of any class of securities of an issuer engaged in the Business whose securities are listed on a national securities exchange or registered pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended, or from owning any amount of securities of an issuer who is not engaged in the Business whose securities are listed on a national securities exchange or registered pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended. In the event a court of competent jurisdiction determines that the foregoing restriction is unreasonable in terms of geographic scope or otherwise then the court is hereby authorized to reduce the scope of said restriction and enforce this Section 3.3 as so reduced. If any sentence, word or provision of this Section 3.3 shall be determined to be unenforceable, the same shall be severed herefrom and the remainder shall be enforced as if the unenforceable sentence, word or provision did not apply exist. Notwithstanding any provision of this Agreement to any (1) individual whose employment or service was terminated by the Companies or contrary, the Transferred Subsidiaries, terms and conditions of this Section 3.3 shall survive for a period of two (2) publishing or posting years following termination of open positions in Employee’s employment with the course of normal hiring practices Company, at which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from time the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions conditions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision 3.3 shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedterminate.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Employment Agreement (Bioanalytical Systems Inc), Employment Agreement (Bioanalytical Systems Inc)
Non-Solicitation. For a period of ten (a10) During years from the period beginning on the Closing Date and ending on the 18-month anniversary of the Closing Effective Date, and except as otherwise required neither Party nor its affiliates or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) subsidiaries shall not, directly or indirectly:
indirectly solicit, recruit or hire (i) Induce, solicit either as an employee or encourageas a contractor), or attempt to inducesolicit, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit recruit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired either as an employee or in another capacity (including as a contractor) any of the other Party’s employees or any other individuals who were individually contracted-for, or any person who was employed or engaged as an independent contractor employee or consultant) if no Restricted Entity had previously attempted such an individual who was individually contracted-for by the other Party at any time within the preceding one year period (such persons being hereinafter referred to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant“Agent”); provided, however, that the foregoing this shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of prohibit a Party from advertising for open positions in the course of normal hiring practices which provided that such advertisements are not specifically sent totargeted solely at the Agents of the other Party. Further, for a period of ten (10) years after the Effective Date, neither Party nor its affiliates or do not specifically targetsubsidiaries shall directly or indirectly, employees of Seller for its own benefit or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement benefit of each party a third party, induce or attempt to comply with these covenants, induce any Agent of the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by Party to leave such Agent’s position with the other partyParty, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction way attempt to interfere with the employment, consulting or (2) business relationship between the remaining terms other Party and provisions any Agent of such other Party. In addition, Licensor represents, warrants, and covenants that if Licensor shall license, sublicense, sell or otherwise transfer the LMT Technology to any third party after the Effective Date of this Section 7.7 Agreement (each such third party, a “LMT Licensee”), Licensor shall include, as a condition to any such license, sublicense, sale or transfer, a covenant that for a period of ten (10) years after the Effective Date, neither the LMT Licensee nor its affiliates or subsidiaries shall directly or indirectly solicit, recruit or hire (either as an employee or as a contractor), or attempt to solicit, recruit or hire (either as an employee or as a contractor) any of Licensee’s Agents; provided, however, that this shall not prohibit the LMT Licensee from advertising for open positions provided that such advertisements are not targeted solely at the Agents of Licensee. Each such agreement with an LMT Licensee shall further provide that so long as such license, sublicense, sale or transfer remains in effect, neither the LMT Licensee nor its affiliates or subsidiaries shall directly or indirectly, for its own benefit or for the benefit of a third party, induce or attempt to induce any Agent of Licensee to leave such Agent’s position with Licensee, or in any situation in other way attempt to interfere with the employment, consulting or business relationship between Licensee and any jurisdiction; (ii) Agent of Licensee. Licensor shall cause Licensee to be named a third party beneficiary of such provisions under each such agreement with an LMT Licensee, with the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other explicit right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled for Licensee to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertakingsuch restrictions directly against the LMT Licensee.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: VPC Sublicense Agreement, VPC Sublicense Agreement (Liquidmetal Technologies Inc)
Non-Solicitation. (a) During the period beginning on that this Agreement is in effect and for the Closing Date and ending on the 18-month anniversary three (3) year period immediately following termination of the Closing Date, and except as otherwise required or permitted by any Ancillary this Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) Independent Contractor shall not, not directly or indirectly:
indirectly through another entity (i) Induceinduce or attempt to induce any employee of, or consultant to, VMS or its subsidiaries to leave the employ of, or consultancy to, VMS or its subsidiaries, or in any way interfere with the relationship between VMS or its subsidiaries and any employee or consultant thereof, (ii) hire any person who was an employee of, or consultant to, VMS or its subsidiaries at any time during the twelve-month period immediately prior to the date on which such hiring would take place without the written consent of VMS (it being conclusively presumed by the parties so as to avoid any disputes under this section that any such hiring within such twelve-month period is in violation of clause (i) above); (iii) call on, solicit or encourageservice any customer, referral partner, affiliate, agent, supplier, licensee, licensor, consultant, contractor or other business relation of VMS or its respective subsidiaries in order to induce or attempt to induceinduce such person to cease doing business with VMS or its subsidiaries, solicit or encouragein any way interfere with the relationship between any such customer, referral partner, affiliate, agent, supplier, licensee, licensor, consultant, contractor or other business relation and VMS or its subsidiaries (including, without limitation, making any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) negative statements or communications about VMS or its subsidiaries); or (2iv) reducecall on, terminate solicit, or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire take away or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; providedcall on, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent tosolicit, or do not specifically targettake away any of VMS’s customers, Continuing Employees referral partners, affiliates, agents and vendors on whom Independent Contractor called or hiring as a result with whom Independent Contractor became acquainted during its contractual relationship with VMS, either on its behalf or that of such postingother person, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitationsfirm, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individualcorporation.
(b) Purchaser agrees that from If, at the date hereof until the 18-month anniversary time of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The section above (the “Protective Covenants”), a court shall hold that the duration, scope or area restrictions stated herein are unreasonable under circumstances then existing, the parties have independently consulted with their respective counsel and after such consultation hereto agree that the covenants set forth in this Section 7.7 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 Protective Covenants to cover the maximum duration, scope and area permitted by law. Independent Contractor agrees that the Protective Covenants are reasonable and proper in scope, terms of duration, geographical scope and area restrictions and in all other respects. If any such covenant is found are necessary to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination protect the goodwill of a court or any other Governmental Authority of competent jurisdiction, Seller VMS’s businesses and Purchaser agree that: (i) such determination shall agrees not affect to challenge the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedProtective Covenants.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Independent Contractor Agreement, Independent Contractor Agreement
Non-Solicitation. Seller agrees that for a period of one (a1) During the period beginning on the Closing Date year from and ending on the 18-month anniversary of after the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiariesother than Affiliates that are natural persons) not to, directly or indirectly, solicit, solicit to hire or attempt to solicit or hire any Transferred Employee, unless such Person ceased to be an employee of Seller Purchaser or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply Subsidiaries prior to any (i) individual whose employment or service was terminated such action by Seller or its Affiliates, (ii) publishing or posting of open positions or, in the course case of normal hiring practices which are not specifically sent tosuch Person’s voluntary termination of employment with Purchaser or its Subsidiaries, or do not specifically target, employees of at least three months prior to such action by Seller or its Affiliates or hiring as a result of such postingAffiliates. Notwithstanding the foregoing, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants restrictions set forth in this Section 7.7 are an essential element 5.16 prohibiting solicitation of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that employment shall not be affected apply to bona fide general solicitations of, or advertisements for, employment placed by performance Seller or nonperformance its Affiliates that are not specifically targeted at such Persons. In addition, neither Seller nor any of its Affiliates (other than Affiliates that are natural persons) shall directly, or indirectly through another Person, for so long as Seller shall have continuing obligations under Section 5.17 below, call on, solicit or service any customer, supplier, licensee, licensor or other provision business relation of this Agreement. The existence Purchaser or any of its Affiliates in order to induce or attempt to induce such Person to cease doing business with Purchaser or any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense its Affiliates with respect to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scopeBusiness, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction way interfere with the relationship between any such customer, supplier, licensee or business relation with respect to the Business and Purchaser or any of its Affiliates (2) including making any negative statements or communications with respect to the remaining terms and provisions Business about Purchaser or any of its Affiliates). For purposes of this Section 7.7 5.16, the term Affiliate (when used in the context of Seller) shall not include any situation in Person that, after the Closing Date, acquires control of Seller (an “Acquiring Person”) or any jurisdiction; Subsidiary of an Acquiring Person (iiother than Seller and its Subsidiaries at the time of such acquisition of control) (an “Acquiring Person Subsidiary”) that does not use information regarding the offending term or provision shall identities of Transferred Employees for purposes of taking action that would otherwise be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in prohibited by this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified5.16.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Acquisition Agreement (Syniverse Technologies Inc), Acquisition Agreement (Verisign Inc/Ca)
Non-Solicitation. (a) During the period beginning on the Closing Date and ending on the 18-month anniversary of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser Buyer agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and on or after the Transferred SubsidiariesClosing) not to, for a period commencing on the Effective Date and ending on the date that is twelve (12) months after the Closing Date, except as provided in the FTC Documents, solicit employment of employees of Sellers or their Affiliates (but, following the Closing, excluding the employees of the Companies) with whom Buyer had substantial contact with as a result of the transactions contemplated by this Agreement; provided, however, that the restrictions contained in this Section 8.14(a) shall not apply to (a) general solicitations not specifically directed to any employee of Sellers or their Affiliates, (b) any solicitation of employees of the Companies in connection with employment at the Companies, and (c) any solicitation or hiring of an individual who is not employed by Seller or its Affiliates at the time of such solicitation or hiring of that individual and so long as such party did not cause, induce or attempt to cause or induce such employee to no longer be employed by Sellers or their Affiliates.
(b) Buyer shall not, and shall cause its Affiliates (including the Companies on or after the Closing) not to, for a period commencing on the Effective Date and ending on the date that is twelve (12) months after the Closing Date, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity any employee of Sellers or their Affiliates (including but, following the Closing, excluding the employees of the Companies) in the St. Louis MO-IL metropolitan statistical area (except as an independent contractor or consultantprovided for in the FTC Documents); provided, however, that the foregoing shall not apply to any Buyer and its Affiliates may:
(i) individual whose solicit employees of the Companies in connection with employment at the Companies;
(ii) advertise for employees in newspapers, trade publications, or service was terminated by Seller other media, or engage recruiters to conduct general employee search activities, in either case not targeted specifically at employees of Sellers or their Affiliates in the St. Louis MO-IL metropolitan statistical area;
(iii) hire employees of Sellers or their Affiliates in the St. Louis MO-IL metropolitan statistical area who apply for employment with Buyer or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are as long as such employees were not specifically sent to, or do not specifically target, employees of Seller solicited by Buyer or its Affiliates in violation of this Section 8.14;
(iv) make offers of employment to or hiring as a result employ or hire any employee of such posting, Sellers or (iii) solicitations made by thirdtheir Affiliates in the St. Louis MO-party search firms that IL metropolitan statistical area if Sellers have not been directed by Purchaser notified Buyer or its Affiliates (including the Companies in writing that Sellers and their Affiliates do not intend to make an offer of employment to that employee, or where such an offer has been made and the Transferred Subsidiariesemployee has declined the offer, or where the employee’s employment has been terminated by Sellers or their Affiliates; or
(v) to specifically solicit or hire any former employee of Sellers or their Affiliates in the St. Louis MO-IL metropolitan statistical area who is not employed by Sellers or their Affiliates at the time of such individuals solicitation or hiring as a result of such solicitationsemployee and so long as Buyer and its Affiliates did not cause, induce or attempt to cause or induce such employee to no longer be employed by Sellers or their Affiliates in violation of this Section 8.14.
(c) The parties acknowledge Sellers shall not, and shall cause their Affiliates not to, for a period commencing on the Effective Date and ending on the date that is (x) with respect to employees listed on Section 8.14(c) of the covenants set forth in this Section 7.7 are an essential element of this Agreement and thatCompany Disclosure Letter, but twenty-four (24) months after the Closing Date, or (y) for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim applicable employee, twelve (12) months after the Closing Date, directly or cause of action against one party by the other partyindirectly, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation solicit for employment or in any other jurisdiction capacity any employee of Buyer or its Affiliates or the Companies in the St. Louis MO-IL metropolitan statistical area; provided, however, that Sellers and their Affiliates may:
(2i) the remaining terms and provisions advertise for employees in newspapers, trade publications, or other media, or engage recruiters to conduct general employee search activities, in either case not targeted specifically at employees of Buyer or its Affiliates;
(ii) hire employees of Buyer or its Affiliates who apply for employment with Sellers or their Affiliates, as long as such employees were not solicited by Sellers or their Affiliates in violation of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and 8.14;
(iii) make offers of employment to or employ or hire any employee of Buyer or its Affiliates if Buyer has notified Sellers or their Affiliates in writing that Buyer and its Affiliates do not intend to make an offer of employment to that employee, or where such an offer has been made and the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.employee has declined the offer, or where the employee’s employment has been terminated by Buyer or its Affiliates; or
(div) The parties hereby acknowledge solicit or hire any former employee of Buyer or its Affiliates who is not employed by Buyer or its Affiliates at the time of such solicitation or hiring of such employee and agree that irreparable damage would occur if this Section 7.7 were so long as Sellers and their Affiliates did not performed cause, induce or attempt to cause or induce such employee to no longer be employed by Buyer or its Affiliates in accordance with its specific terms and that any breach violation of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking8.14.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Equity Interest Purchase Agreement (PNK Entertainment, Inc.), Equity Interest Purchase Agreement (Pinnacle Entertainment Inc.)
Non-Solicitation. (a) During The Seller shall not and shall cause ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and his controlled Affiliates (the period beginning on “Restricted Parties”) not to, prior to the Closing Date and ending on the 18-month one (1)-year anniversary of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates solicit employment of employees (collectively, the “Restricted Entities”x) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) Company or any Company Subsidiary or (2y) reduce, terminate or adversely modify the employment either of the Companies Buyers or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entitytheir respective Affiliates; provided, however, that the foregoing restrictions contained in this Section 6.17(a) shall not apply to (a) general solicitations not specifically directed to any employee of the Company or any Company Subsidiary or either of the Buyers or their respective Affiliates, and (1b) any solicitation of an individual whose employment or service was terminated who is not employed by the Companies Company or any Company Subsidiary or either of the Transferred Subsidiaries, (2) publishing Buyers or posting of open positions in their respective Affiliates at the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result time of such postingsolicitation of that individual and so long as such party did not cause, (3) solicitations made induce or attempt to cause or induce such employee to no longer be employed by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individualother party.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it The OpCo Buyer shall not, and shall cause its controlled Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly prior to the one (1)-year anniversary of the Closing Date (or indirectlysuch other date as mutually agreed by the Seller and OpCo Buyer), solicit, hire or attempt to solicit or hire any employee employment of Seller or any employees of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant)▇▇▇▇ Entertainment LLC; provided, however, that the foregoing restrictions contained in this Section 6.17(b) shall not apply to (a) general solicitations not specifically directed to any (i) individual whose employment employee of the Company or service was terminated by Seller any Company Subsidiary or its either of the Buyers or their respective Affiliates, and (iib) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates any solicitation or hiring as a result of an individual who is not employed by the Company or any Company Subsidiary or either of the Buyers or their respective Affiliates at the time of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals solicitation or hiring of that individual and so long as a result of such solicitations.
(c) The parties acknowledge that party did not cause, induce or attempt to cause or induce such employee to no longer be employed by such other party. Notwithstanding anything to the covenants set forth contrary in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants6.17(b), the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance OpCo Buyer may solicit employment of any other provision employees of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense ▇▇▇▇ Entertainment LLC prior to the enforcement end of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any period if such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall employment does not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable commence prior to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate end of such partyperiod.
Appears in 2 contracts
Sources: Transaction Agreement (Penn National Gaming Inc), Transaction Agreement (Vici Properties Inc.)
Non-Solicitation. (a) During the period beginning on the Closing Date and ending on the 18Non-month anniversary of the Closing DateCompete Term, subject to waiver pursuant to Section 16.03(e) or Section 17.05, no Member shall, and except as otherwise required or permitted by any Ancillary Agreement, Seller and no Member shall permit its Affiliates (collectively, the “Restricted Entities”) shall notrespective Subsidiaries to, directly or indirectly:
, for itself or its respective Subsidiaries and Controlled Affiliates, solicit for employment or offer to employ (i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as employee of the Closing Date Company, (ii) any Secondee of the “Restricted Services”Other Member or Member Group (or any Subsidiary or Controlled Affiliate thereof) or (2iii) reduce, terminate any engineer employed by the Other Member or adversely modify the employment Member Group (or any Subsidiary or Controlled Affiliate thereof) who is not a Secondee and who provides services to or in respect of the Companies Company under the ESA or otherwise (any such Person [***] Confidential treatment has been requested for the Transferred Subsidiaries for such servicesbracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. listed in clauses (i), in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicitand (iii), hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a “Restricted EntityEmployee”); provided, however, that the foregoing shall not apply to prevent any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller Members or any of its their respective Subsidiaries and Controlled Affiliates who is from soliciting or offering to employ any Restricted Employee (A) from and after [***] of the termination of employment of such Restricted Employee, but only if such Member or such Subsidiary or Controlled Affiliate has not a Continuing previously solicited or offered such Restricted Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement violation of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 6.04(d) or (B) whose employment was terminated involuntarily by the Company or such Other Member or Member Group; provided, further, that the phrase “solicit for employment” shall not include general solicitations of or searches for employment not specifically directed towards any Restricted Employee, including through the use of (x) advertisement in any situation in any jurisdiction; medium (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scopeincluding websites, duration or geographical area of any invalid or unenforceable term or provisionjournals, to delete specific words or phrasesindustry publications, or to replace any invalid newspapers or enforceable term other publications of general circulation), (y) electronic listings or provision with a term (z) third party recruiting or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provisionsearch firms, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedeach case, not specifically directed towards any Restricted Employee.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Woodward, Inc.), Master Agreement (Woodward, Inc.)
Non-Solicitation. (a) During the period beginning on the Closing Date and ending on the 18-month anniversary of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectivelyParent, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use Other Sellers and Seller agree that for a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as period of the Closing Date (the “Restricted Services”) or two (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that years from the date hereof until the 18-month anniversary of and after the Closing Date it shall not, and it shall cause each of their Subsidiaries not to (and shall not encourage or assist any of its Affiliates (including to), without the Companies and the Transferred Subsidiaries) not toprior written consent of Purchaser, directly or indirectly, solicitsolicit to hire (or cause or seek to cause to leave the employ of Purchaser or any of its Subsidiaries) (i) any Transferred Employee or (ii) any other Person employed by Purchaser who became known to or was identified to the Seller Parent, hire Other Sellers or attempt to solicit or hire any employee of Seller or any of their Affiliates prior to the Closing in connection with the transactions contemplated by this Agreement, unless in each case such Person ceased to be an employee of Purchaser or its Subsidiaries prior to such action by the Seller Parent, Other Sellers or Seller or any of their Affiliates, or, in the case of such Person’s voluntary termination of employment with Purchaser or any of its Subsidiaries, at least three (3) months prior to such action by the Seller Parent, Other Sellers or Seller or any of their Affiliates. Seller Parent agrees, upon the reasonable request of Purchaser, to use its commercially reasonable efforts to cause its Affiliates to enforce their rights for the benefit of Purchaser under the non-solicitation provisions of the Semiconductor Business Purchase Agreement; provided that all costs and expenses incurred in connection with the enforcement of such rights shall be borne exclusively by Seller Parent.
(a) Purchaser agrees that for a period of two (2) years from and after the Closing Date it shall not, and it shall cause its Subsidiaries not to (and shall not encourage or assist any of its Affiliates to), without the prior written consent of Seller, directly or indirectly, solicit to hire (or cause or seek to cause to leave the employ of the Other Sellers or Seller or any of their Affiliates) any Person that it or they know to be employed by the Other Sellers or Seller or any of their Affiliates as of the Closing Date unless such Person ceased to be an employee of the Other Sellers or Seller or any of their Affiliates prior to such action by Purchaser or any of its Subsidiaries, or, in the case of such Person’s voluntary termination of employment with the Other Sellers or Seller or any of their Affiliates, at least three (3) months prior to such action by Purchaser or any of its Subsidiaries.
(b) Notwithstanding the foregoing, the restrictions set forth in Sections 6.10 and 6.10(a) shall not apply to (i) bona fide public advertisements for employment placed by any Party and not specifically targeted at the employees of any other Party, or (ii) any employee who is not a Continuing Employee for employment manager or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions contributor who is engaged in the course design of normal hiring practices which are not specifically sent to, Storage Products or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitationsprocesses.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Avago Technologies LTD), Purchase and Sale Agreement (PMC Sierra Inc)
Non-Solicitation. Each of the Buyer Parties agree that:
(a) During for the period beginning commencing on the Closing Date date of this Agreement and ending expiring on the 18thirty-sixth month anniversary of the Closing Date, and except as otherwise required or permitted by without the prior written consent of Seller Parent, neither it nor any Ancillary Agreement, Seller and of its Affiliates (collectively, including the “Restricted Entities”Transferred Entities following the Closing) shall notshall, directly or indirectly:
, (iA) Induce, induce or encourage or solicit any Person who is an employee of any of the Seller Parties (other than a Transferred Employee) or encourage, any of their respective Affiliates to leave such employee’s employment or attempt to induce, solicit accept any other position or encourage, employment with a Buyer Party or any Restricted Customer to of its Affiliates (1) use a Restricted Entity to provide any services which are offered by the Companies and including the Transferred Subsidiaries as of Entities following the Closing Date (the “Restricted Services”Closing) or (2B) reducehire or assist any other Person in hiring such employee;
(b) for the period commencing on the date of this Agreement and expiring at the Closing, terminate neither it nor any of its Affiliates shall, directly or adversely modify the indirectly, (A) induce or encourage or solicit any Employee to leave such Employee’s employment with any Seller Party or any of the Companies or its Affiliates (including the Transferred Subsidiaries for Entities) prior to the Closing or (B) hire or assist any other Person in hiring such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted CustomersEmployee; orand
(iic) Solicitif this Agreement is terminated prior to the Closing, for a period commencing on the date on which this Agreement is terminated and expiring on the second anniversary of such termination, without the prior written consent of Seller Parent, neither it nor any of its Affiliates shall, directly or indirectly, (A) induce or encourage or solicit any Employee to leave such Employee’s employment or to accept any other position or employment with a Buyer Party or any of its Affiliates or (B) hire or attempt to solicit or hire any Continuing Employee for employment or in assist any other capacity (including as an independent contractor or consultant) with a Restricted EntityPerson in hiring such Employee; provided, however, that the foregoing this Section 6.17 shall not apply to any employees (1including Employees) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that who have not been directed employed by any Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller Party or any of its their respective Affiliates who is not a Continuing Employee for employment at any time during the six months prior to the applicable inducing, encouraging, soliciting or in any other capacity hiring, (including as an independent contractor or consultant); provided, however, that the foregoing y) shall not apply to any (i) individual Persons whose employment or service was terminated by any Seller Party or its Affiliates, any of their respective Affiliates and (iiz) publishing shall not prohibit general solicitations for employment through advertisements or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates other means (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision Person resulting therefrom that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases known to be an Affiliate employee of such partythe Seller Parties, to the extent the solicitation is non-targeted).
Appears in 2 contracts
Sources: Stock Purchase Agreement (Tang Hsiang Chien), Stock Purchase Agreement (TTM Technologies Inc)
Non-Solicitation. (a) During For a period of 18 months from and after the period beginning on the Closing Date Closing, each of Seller Parent and ending on the 18-month anniversary of the Closing DateSeller shall not, and except as otherwise required or permitted by any Ancillary Agreementshall cause their respective Subsidiaries not to, Seller and its Affiliates (collectively, without the “Restricted Entities”) shall notprior written consent of Purchaser, directly or indirectly:
(i) Induce, in any manner solicit or encourage, or attempt cause to induce, solicit or encourage, be solicited any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered Person who is employed by the Companies and the Transferred Subsidiaries an Acquired Company as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence non-management employees whose annual base compensation is less than $75,000 and who are not involved in research and development). Notwithstanding the foregoing, the restrictions on solicitation set forth in the immediately preceding sentence shall not prohibit Seller Parent, Seller or any of a their respective Subsidiaries from: (i) engaging in general solicitation conducted by a Restricted Entity solicitations of employment not specifically directed at Restricted Customerstoward the employees of the Acquired Companies; or
(ii) Solicitsoliciting any person who is referred to Seller or any of its Affiliates by search firms, hire employment agencies or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; providedsimilar entities, however, provided that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that entities have not been directed by Seller or its Affiliates specifically instructed to specifically solicit such individuals or hiring as a result of such solicitations, person; or (4iii) individual who approaches a Restricted Entity seeking to be hired as soliciting any person after the date that is 90 days following the date upon which such person’s employment with an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individualAcquired Company has ended.
(b) For a period of 18 months from and after the Closing, Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies respective Subsidiaries and the Transferred Subsidiaries) parent companies not to, without the prior written consent of Seller Parent, directly or indirectly, solicit, hire or attempt to in any manner solicit or hire cause to be solicited any employee Person who is employed by Seller Parent or one of its Subsidiaries (other than the Acquired Companies) as of the Closing (other than non-management employees whose annual base compensation is less than $75,000 and who are not involved in research and development). Notwithstanding the foregoing, the restrictions on solicitation set forth in the immediately preceding sentence shall not prohibit Purchaser or any of its Subsidiaries or parent companies from: (i) engaging in general solicitations of employment not specifically directed toward the employees of Seller Parent or its Subsidiaries; (ii) soliciting any person who is referred to Purchaser or any of its Affiliates who is by search firms, employment agencies or other similar entities, provided that such entities have not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant)been specifically instructed to solicit such person; provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms soliciting any person after the date that have not been directed by Purchaser or its Affiliates (including is 90 days following the Companies and the Transferred Subsidiaries) to specifically solicit date upon which such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply person’s employment with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrasesParent, or to replace any invalid one of Seller Parent’s Affiliates or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provisionSubsidiaries, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedhas ended.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (United Online Inc)
Non-Solicitation. (a) During Executive acknowledges and understands that, in view of Executive’s position with the period beginning on the Closing Date and ending on the 18-month anniversary Company, Executive has been afforded access to confidential information of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller Company and its Affiliates affiliates, tenants and customers. Executive therefore agrees that for a period of 12 months after the later of the Separation Date or the date when the Executive ceases providing consulting services (collectively, the “Restricted EntitiesPeriod”) shall ), Executive will not, without the express prior written consent of the Company, directly or indirectly:
(i) Inducesolicit, solicit or encourageinduce, or attempt assist any third person in soliciting or inducing any person that is (or was at any time within the 12 months prior to inducethe solicitation or inducement) an employee, solicit consultant, independent contractor or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as agent of the Closing Date Company or its affiliates or direct or indirect subsidiaries (individually and collectively referred to herein with the Company as the “Restricted ServicesVornado Group”) or (2) reduce, terminate or adversely modify to leave the employment of the Companies Vornado Group or cease performing services as an independent contractor, consultant or agent of the Transferred Subsidiaries Vornado Group; for such servicesavoidance of doubt, in each case other than as a consequence the referral of a general solicitation conducted by vendor, supplier or other consultant to a Restricted Entity third party shall not specifically directed be a violation of this section so long as Executive does not intentionally induce the vendor, supplier or consultant to cease doing business with the Vornado Group;
(ii) hire, engage, or assist any third party in hiring or engaging, any individual that is or was (at Restricted Customersany time within 12 months prior to the attempted hiring) an employee of the Vornado Group; or
(iiiii) Solicit, hire or attempt to solicit or hire interfere with the Vornado Group’s relationships with, or endeavor to entice away from the Vornado Group for a competing business, any Continuing Employee for employment person or entity that is or was (at any time within the 12-month period preceding the later of the Separation Date or the termination date of the Consulting Agreement, a tenant or customer or “Prospective Tenant or Customer” (as defined below) of the Vornado Group. A “Prospective Tenant or Customer” is any individual or entity with respect to whom or which the Vornado Group was engaged in meaningful solicitation at any time during the 12 month period preceding the later of the Separation Date or the termination date of the Consulting Agreement and in which solicitation Executive was in any way involved or of which Executive otherwise had any knowledge or reasonably should have had any knowledge. The provisions of Sections 8 and 9 shall be in addition to any confidentiality and non-solicitation terms set forth in any other capacity (agreement between Executive and the Vornado Group, including as an independent contractor or consultant) with a Restricted Entity; providedwithout limitation the Employment Agreement and the Consulting Agreement. Without limitation of the foregoing, however, Executive agrees that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions restrictions contained in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, Sections 8 and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element 9 of this Agreement are necessary and thatappropriate to protect the Vornado Group’s business and goodwill and Executive considers them reasonable for such purpose. Executive agrees that the restrictions contained in this Agreement will not prevent Executive from obtaining gainful employment. Executive agrees that in any action seeking specific performance or other equitable relief, but for Executive will not assert or contend that any of the agreement provisions of each party to comply with these covenantsSections 8 and 9 of this Agreement are unreasonable or otherwise unenforceable. Executive further agrees that in the event of Executive’s breach or threatened breach of any of the provisions of Sections 8 or 9 of this Agreement, the other party Vornado Group would suffer substantial irreparable harm and would not have entered into this Agreementan adequate remedy at law for such breach. The parties acknowledge In recognition of the foregoing, Executive agrees that this Section 7.7 constitutes an independent covenant that shall not be affected by performance in the event of a breach or nonperformance threatened breach of any other provision of this Agreement. The existence of any claim or cause of action against one party those provisions by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. AccordinglyExecutive, in addition to any such other right or remedy to which such party remedies that the Vornado Group may be entitled, have at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7law, without posting any bond or security, the Vornado Group shall be entitled to seek and obtain equitable relief, in the form of specific performance, or temporary, preliminary or permanent injunctive relief, or any other undertaking.
(e) For the avoidance equitable remedy which then may be available, as well as attorneys’ fees and costs and an equitable accounting of doubtall earnings, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if profits and other benefits arising, directly or indirectly, from such Person ceases to be an Affiliate breach. The seeking of such partyinjunction or order shall not affect the Vornado Group’s right to seek and obtain damages or other equitable relief on account of any such actual or threatened breach.
Appears in 2 contracts
Sources: Separation Agreement (Vornado Realty Lp), Separation Agreement (Vornado Realty Lp)
Non-Solicitation. (a) During the period beginning on the Closing Date and ending on the 18-month anniversary of the Closing DateRestricted Period, each Party shall not, and except as otherwise required or permitted by any Ancillary Agreement, Seller and shall cause its Affiliates (collectively, the “Restricted Entities”) shall notSubsidiaries not to, directly or indirectly:
(ia) Inducesolicit, solicit or encouragecause, induce or attempt to inducesolicit, solicit cause or encourageinduce any customer, supplier, licensee, licensor, franchisee, employee, consultant or other Person who is a business relation of the other Party or any Restricted Customer of its Subsidiaries as of and giving effect to the Closing to (1i) use cease doing business with the other Party or any of its Subsidiaries, (ii) to engage in business with any competitor of the other Party or any of its Subsidiaries (but solely with respect to a Competing Business) or (iii) materially and adversely interfere with the relationship between any such customer, supplier, licensee, licensor, franchisee, employee, consultant or business relation of the other Party or any of its Subsidiaries; or
(b) solicit for employment or attempt to solicit otherwise, endeavor to entice away from the other Party or any of its Subsidiaries, hire or retain any Person who is a director, officer, employee, full-time consultant or contractor, agent or other personnel of the other Party or any of its Subsidiaries (“Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries Personnel”) as of the Closing Date (or during the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; orPeriod.
(iic) SolicitNotwithstanding the foregoing, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing this Section 5.11 shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller prohibit either Party or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliatessoliciting any Restricted Personnel of the other Party through a general advertisement not targeted at such Restricted Personnel, (ii) publishing hiring or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of retaining any Restricted Personnel that respond to any such postinggeneral advertisement, or (iii) solicitations made by third-party search firms soliciting, hiring or retaining any Person that have has not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring served as a result director, officer, employee, consultant, contract, agent or as other personnel of the other Party for at least six (6) months prior to such solicitationssolicitation or employment.
(cd) The parties acknowledge Each Party hereby acknowledges and agrees that the covenants set forth restrictive period of time, geographic scope and scope of restricted activity specified herein are reasonable and necessary in this Section 7.7 are an essential element view of this Agreement the Transactions and that, but for the agreement nature of the business in which each party to comply with these covenants, Party is engaged. Each Party acknowledges and agrees that the other party would not have entered into this Agreement. The parties acknowledge that Agreement but for such Party’s agreements and obligations pursuant to this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance 5.11. If the scope of any other provision stated restriction is too broad to permit enforcement of this Agreement. The existence of any claim or cause of action against one party by such restriction(s) to its full extent, then the other party, whether predicated on the breach of this Agreement or otherwise, Parties agree that such restriction shall not constitute a defense be enforced and/or modified to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest maximum extent permitted by applicable Law; and (iii) law. The Parties agree that, in the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any event of a breach of this Section 7.7 by 5.11, the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches Restricted Period (for purposes of this Section 7.7, without posting any bond or other undertaking.
(e5.11 and only with respect to the breaching party) For shall be extended with respect to the avoidance of doubt, none breaching party by the period of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such partybreach.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Terex Corp), Stock and Asset Purchase Agreement
Non-Solicitation. (a) During the period beginning on the Closing Date and ending on the 18-month anniversary of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicitduring the period from the Closing Date until the second anniversary of the Closing Date, hire contact, approach or attempt solicit for the purpose of offering employment to or hiring (whether as an employee, consultant, agent, independent contractor or otherwise), or hire, any person employed by Buyer (with respect to the Business) or the Longhorn Entities (or their respective Affiliates or successors-in-interest to the extent related to the Business) (other than employees whose annual base compensation is less than $75,000).
(b) Buyer shall not, and shall cause its Affiliates not to, directly or indirectly, during the period from the Closing Date until the second anniversary of the Closing Date, contact, approach or solicit for the purpose of offering employment to or hire hiring (whether as an employee, consultant, agent, independent contractor or otherwise), or hire, any employee of person employed by Seller (or its Affiliates or successors-in-interest), in either case for a position with Buyer or any of its Affiliates who related to the Business (other than employees whose annual base compensation is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultantless than $75,000); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge Notwithstanding the foregoing, the Parties agree that the provisions of Section 9.7(a) and Section 9.7(b) shall not prohibit (i) the hiring of a person whose employment was terminated by his or her respective employer (or its Affiliates) and who was not solicited by the other party (or its Affiliates in violation of Section 9.7(a) or (b), as applicable, or (ii) solicitation by way of general advertising, including general solicitations in any local, regional or national newspapers or other publications or circulars or on internet sites or any search firm engagement which is not directed or focused on employees of Buyer, or Seller or their respective Affiliates as applicable.
(d) The Parties agree that the restraints created by the covenants set forth in this Section 7.7 9.7 are no greater than necessary to protect the Parties’ respective legitimate interests, that damages would be an essential element inadequate remedy and that a Person seeking to enforce this Section 9.7 shall be entitled to seek specific performance and injunctive relief as remedies for any breach hereof. Furthermore, the Parties agree that such covenants do not hinder, or otherwise cause hardship to, any party or its Affiliates with respect to finding other employees or any party’s or its Affiliates’ employees with respect to finding employment elsewhere. Similarly, the Parties agree that no party’s need for the protection afforded by the covenants of this Agreement and that, but for Section 9.7 is outweighed by either the agreement of each party hardship to comply with these covenants, the any other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of its Affiliates or any other provision of this Agreementpublic interest. The existence of any claim or cause of action of a party against one party by the other another party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement by a party of the covenants contained in this Section 7.79.7. The parties have independently consulted with their respective counsel and after such consultation agree that Should any portion of the covenants set forth in this Section 7.7 are reasonable and proper 9.7 be held to be wholly or partially invalid or unenforceable because such portion is held to be overly broad or unreasonable in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination holding shall not affect invalidate or void the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions remainder of this Section 7.7 9.7 or this Agreement, and the portions held to be overly broad or unreasonable in any situation in any jurisdiction; (ii) the offending term or provision scope shall be reformed rather than voided revised and the court or Governmental Authority making such determination reduced in scope so as to be valid and enforceable, and shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provisionbe enforced as so reformed, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest maximum extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedlaw.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Rowan Companies Inc), Stock Purchase Agreement (Joy Global Inc)
Non-Solicitation. (a) During the For a period beginning on the Closing Date and ending on the 18-month anniversary of one year following the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) Subsidiaries not to, directly or indirectly, solicitsolicit for employment any Transferred Employee, hire unless such person ceased to be an employee of Purchaser or attempt its Subsidiaries prior to such action by Seller or its Subsidiaries, or, in the case of such person’s voluntary termination of employment with Purchaser or its Subsidiaries, at least six months prior to such action by Seller or its Subsidiaries; provided that the foregoing provision will not prevent Seller or any of its Subsidiaries from employing any such person who contacts Seller or any of its Subsidiaries on his or her own initiative without any direct or indirect solicitation by, or encouragement from, Seller or any of its Subsidiaries; provided further that the publication of advertisements in newspapers and/or electronic media of general circulation (including advertisements posted on the Internet) will not be deemed a violation of this Section 5.16(a).
(b) For a period of one year following the Closing Date, Purchaser shall not, and shall cause its Subsidiaries not to, directly or indirectly, solicit or hire for employment any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as Subsidiaries, unless such person ceased to be an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees employee of Seller or its Affiliates or hiring as a result of Subsidiaries prior to such posting, or (iii) solicitations made by third-party search firms that have not been directed action by Purchaser or its Affiliates Subsidiaries, or, in the case of such person’s voluntary termination of employment with Seller or its Subsidiaries, at least six months prior to such action by Purchaser or its Subsidiaries; provided that the foregoing provision will not prevent Purchaser or any of its Subsidiaries from employing any such person who contacts Purchaser or any of its Subsidiaries on his or her own initiative without any direct or indirect solicitation by, or encouragement from, Purchaser or any of its Subsidiaries; provided further that the publication of advertisements in newspapers and/or electronic media of general circulation (including advertisements posted on the Companies and the Transferred SubsidiariesInternet) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall will not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute deemed a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions violation of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified5.16(b).
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Acquisition Agreement (Symantec Corp), Acquisition Agreement (Verisign Inc/Ca)
Non-Solicitation. (a) During Until the period beginning on later of (x) the Closing Date expiration of the Standstill Period and ending on (y) the 18-month second (2nd) anniversary of the Closing Date, the Investor covenants and except as otherwise required or agrees that, to the fullest extent permitted by any Ancillary Agreement, Seller and its Affiliates (collectivelyApplicable Law, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it Investor shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, without the prior written consent of Parent, directly or indirectlyindirectly (whether alone or jointly with another Person), solicit, (a) hire or attempt solicit for employment (whether as an officer, employee or consultant or other independent contractor) any individual who is an employee or officer of Parent or any of its Affiliates, including the Company and its Subsidiaries, as of immediately following the Closing with a title of Vice President or more senior and, solely with respect to solicit such employees or hire any employee officers of Seller Parent or any of its Affiliates who is as of immediately prior to the Closing were not a Continuing Employee for employees or officers of the Company or any of its Subsidiaries, with whom the Investor has had contact or who (or whose performance) became known to the Investor in connection with the negotiation of the transactions contemplated by the Merger Agreement or (b) otherwise knowingly encourage any such individual to terminate his or her employment or in any other capacity (including as an independent contractor service to Parent or consultant)its Affiliates; provided, however, that the foregoing restrictions of this Section 3.2(a) shall not apply to any prohibit (i) solicitation of any individual whose employment through any general advertisement, or service was terminated by Seller any search firm, placement agency or its Affiliatesrecruiting agency engagement which, in any such case, is not directed or targeted at any such individual, (ii) publishing solicitation of or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller any individual whose employment with Parent or its Affiliates or hiring as a result applicable Affiliate terminated after the Closing and at least six (6) months prior to the commencement of employment discussions with such posting, individual or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals solicitation of or hiring as any individual who has, without any encouragement from the Investor or any of its Affiliates, relocated (on a result of such solicitationsfull-time basis) or otherwise changed their permanent residence to Israel.
(cb) The parties acknowledge that Until the second (2nd) anniversary of the Closing Date, Parent covenants set forth in this Section 7.7 are an essential element of this Agreement and agrees that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by Applicable Law, Parent shall not, and shall cause its Affiliates not to, without the prior written consent of the Investor, directly or indirectly (whether alone or jointly with another Person), (a) hire or solicit for employment (whether as an officer, employee or consultant or other independent contractor) any individual who is an employee or officer of the Investor or any of its Affiliates as of immediately following the Closing constituting a “Forum 100” or more senior employee or officer and with whom Parent has had contact or who (or whose performance) became known to Parent in connection with the negotiation of the transactions contemplated by the Merger Agreement or (b) otherwise knowingly encourage any such individual to terminate his or her employment or service to the Investor or its Affiliates; provided, however, that the restrictions of this Section 3.2(b) shall not prohibit (i) solicitation of any individual through any general advertisement, or any search firm, placement agency or recruiting agency engagement which, in any such case, is not directed or targeted at any such individual, or (ii) solicitation of or hiring any individual whose employment with the Investor or its applicable Law; Affiliate terminated after the Closing and at least six (6) months prior to the commencement of employment discussions with such individual or (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that solicitation of or hiring any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7individual who has, without posting any bond encouragement from Parent or other undertaking.
any of its Affiliates, relocated (eon a full-time basis) For or otherwise changed their permanent address to the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.U.S.
Appears in 2 contracts
Sources: Investor Rights Agreement (Valley National Bancorp), Merger Agreement (Valley National Bancorp)
Non-Solicitation. (a) During For a period of one year from the period beginning on the Closing Date and ending on the 18-month anniversary of the Closing DateClosing, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) Sellers shall not, and Sellers shall cause each of their Affiliates not to, directly or indirectly:
indirectly perform any action, activity or course of conduct consisting of or encouraging the following: (A) soliciting or recruiting any key employees of the Business (as continued following the Closing); or (B) soliciting or directly encouraging any key employees of the Business (as continued following the Closing) to leave the employment of Purchaser, a Purchased Business Company, or any of their respective Affiliates; and for a period of six months from the Closing, Sellers shall not, and Sellers shall cause each of their Affiliates not to, directly or indirectly perform any action, activity or course of conduct consisting of or encouraging the following: (X) soliciting or recruiting any employees of the Business (as continued following the Closing); or (Y) soliciting or directly encouraging any employees of the Business (as continued following the Closing) to leave the employment of Purchaser or a Purchased Business Company. For purposes hereof, a key employee of the Business (as continued following the Closing) shall include any officer or director of Purchaser, a Purchased Business Company or any of their respective Affiliates and any employee involved in the Business (as continued following the Closing) who has management or supervisory responsibilities, including division or group managers. The foregoing shall not prohibit (i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted to the public of general advertising or similar methods of solicitation by a Restricted Entity search firms not specifically directed at Restricted Customers; or
employees of the Business (as continued following the Closing) or (ii) SolicitSellers or any of their Affiliates from soliciting, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent torecruiting, or do not specifically target, Continuing Employees or hiring any employee of the Business (as a result of such posting, (3continued following the Closing) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking has ceased to be hired employed or retained by Purchaser, the Purchased Company or their Affiliates (as an employee or in another capacity (including as an independent contractor or consultantthe case may be) if no Restricted Entity had previously attempted to solicit or hire such individualfor at least three months.
(b) Purchaser agrees Notwithstanding anything contained in this Agreement to the contrary, the parties hereto recognize and agree that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course event of normal hiring practices which are not specifically sent to, or do not specifically target, employees a breach of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that5.09 by any party, but for the agreement of each party to comply with these covenants, the other party money damages would not have entered into this Agreementbe an adequate remedy to the injured party for such breach and, even if money damages were adequate, it would be impossible to ascertain or measure with any degree of accuracy the damages sustained by such injured party therefrom. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not Accordingly, if there should be affected a breach or threatened breach by performance or nonperformance any party of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) 5.09, the offending term or provision injured party shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law either with or without pursuing any potential damage remedies, to immediately obtain an injunction prohibiting the breaching party from violating this section without showing or proving actual damage sustained by the injured party. Nothing in equity the preceding sentence shall limit or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting otherwise affect any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person remedies that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such partymay otherwise have under applicable law.
Appears in 2 contracts
Sources: Purchase Agreement (Dresser Inc), Purchase Agreement (Cooper Cameron Corp)
Non-Solicitation. (a) During the Seller agrees that, for a period beginning commencing on the Closing Date and ending on the 18-month anniversary of date that is 18 months after the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates Subsidiaries not to, solicit for employment or hire any Company Employee listed on Section 5.06(a) of the Seller Disclosure Schedule; provided that this Section 5.06(a) shall not prohibit Seller or any of its Subsidiaries from (i) conducting a general solicitation or advertisement that is not specifically directed at Company Employees; (ii) soliciting for employment or hiring any individuals who have not been employed or engaged by a Company Group member for a period of six months prior to the date such individuals were first solicited for employment; or (iii) soliciting for employment or hiring any individuals whose employment or engagement with the applicable Company Group member is terminated by such Company Group member.
(b) Buyer agrees that, for a period commencing on the Closing Date and ending on the date that is 18 months after the Closing Date, Buyer shall not, and shall cause its Subsidiaries (including the Companies and Company Group members after the Transferred SubsidiariesClosing) not to, directly or indirectly, solicit, hire or attempt to solicit for employment or hire any employee of Seller or its Affiliates listed on Section 5.06(b) of the Seller Disclosure Schedule; provided that this Section 5.06(b) shall not prohibit Buyer or any of its Affiliates who Subsidiaries from (i) conducting a general solicitation or advertisement that is not a Continuing Employee specifically directed at employees of Seller and its Affiliates; (ii) soliciting for employment or in hiring any other capacity (including as an independent contractor individuals who have not been employed or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated engaged by Seller or its Affiliates, Affiliates for a period of six months prior to the date such individuals were first solicited for employment; or (iiiii) publishing soliciting for employment or posting of open positions in the course of normal hiring practices which are not specifically sent to, any individuals whose employment or do not specifically target, employees of engagement with Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made is terminated by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitationsPerson.
(c) The parties undertakings in Section 5.06(a) are given to Buyer and to each of its Affiliates and the undertakings in Section 5.06(b) are given to Seller and each of its Affiliates. Seller and Buyer each acknowledge that such undertakings are entirely independent restrictions and are no greater than is reasonably necessary to protect the covenants set forth in this Section 7.7 are an essential element interests of this Agreement Buyer and thatits Affiliates, but for on the agreement one hand, and of each party to comply with these covenantsSeller and its Affiliates, on the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respectshand. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a the final determination judgment of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending jurisdiction declares that any term or provision in any other situation of Section 5.06(a) or in any other jurisdiction Section 5.06(b) is invalid or (2) unenforceable, the remaining terms and provisions Parties agree that such court making the determination of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term invalidity or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall unenforceability will have the power to reduce the scope, duration or geographical area of any invalid or unenforceable the term or provision, to delete specific words or phrases, phrases or to replace any invalid or enforceable unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, in order to render the restrictive covenants set forth in and this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall Agreement will be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach modified after the expiration of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to time within which such party the judgment may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertakingappealed.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Fortress Transportation & Infrastructure Investors LLC), Membership Interest Purchase Agreement (United States Steel Corp)
Non-Solicitation. (a) During If the period beginning on Grantee has an Employment Agreement which contains a non-solicitation provision, then the Closing Date and ending on terms of such Employment Agreement shall govern the 18terms of this non-month anniversary of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entityprovision; provided, however, that if the foregoing shall Grantee is not apply a party to any such Employment Agreement or such Employment Agreement does not contain a non-solicitation provision, then the Grantee agrees that during the Grantee’s employment (including any applicable Notice Period), and for six (6) months following any termination thereof, the Grantee shall not, without the Company’s prior written consent, directly or indirectly (1) individual whose employment solicit or service was terminated by induce, or cause others to solicit or induce, any director, officer, or employee of the Companies Company or any Affiliate, to leave the Transferred SubsidiariesCompany or such Affiliate or in any way modify his relationship with the Company or such Affiliate, (2) publishing hire or posting of open positions in the course of normal hiring practices which are not specifically sent tocause others to hire any director, officer, or do not specifically target, Continuing Employees employee of the Company or hiring as a result of such postingany Affiliate, (3) solicitations made encourage or assist in the hiring process of any director, officer, or employee of the Company or any Affiliate, or in the modification of any such person’s relationship with the Company or such Affiliate, or cause others to participate, encourage, or assist in the hiring process of any director, officer, or employee of the Company or any Affiliate, (4) interfere in any way with the rendering of professional services by third-party search firms that have not been directed or to the Company or any Affiliate by Seller any client, prospective client, consultant, independent contractor, or vendor, or his or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitationsrespective individual employees, or (45) individual who approaches a Restricted Entity seeking to be hired as an employee solicit the trade or in another capacity (including as an independent contractor patronage of any client or consultant) if no Restricted Entity had previously attempted to solicit customer or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary any prospective client or customer of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller Company or any Affiliate (for this purpose a prospective client or customer shall only include prospective clients or customers who were actively solicited within the six (6) month period prior to the Grantee’s termination where the Grantee participated in or was aware of its Affiliates who is not a Continuing Employee such solicitation), for employment or purposes of engaging in any business relationship with respect to any products, services, trade secrets, or other capacity (including as an independent contractor matters in which the Company or consultant)such Affiliate is active, provides or has committed plans to provide; provided, however, that the foregoing shall not apply to any (i) individual whose employment if Grantee’s new employer solicits a client or service was terminated by Seller customer without Grantee’s knowledge and without Grantee’s participation, then such client or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that customer shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found deemed to be invalid, void a client or unenforceable in any situation in any jurisdiction by a final determination of a court customer or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity prospective client or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions customer for purposes of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.2.3(a)(5).][FOR EMPLOYEES ONLY]
Appears in 2 contracts
Sources: Equity Award Agreement (Cowen Group, Inc.), Equity Award Agreement (Cowen Group, Inc.)
Non-Solicitation. (a) During the period beginning on the Closing Date and ending on the 18-month anniversary of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing Each Seller shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by and each Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire on behalf of itself or any other Person solicit or attempt to solicit during the period beginning on the date hereof and ending on the thirty-month anniversary of the date hereof (the “Restricted Period”), the employment of any Transferred Employee or hire otherwise encourage, induce, solicit or attempt to encourage, induce or solicit any employee Transferred Employee to leave the employment of Seller or engagement with Buyer or any of its Affiliates; and
(ii) Each of the parties agree that during the period beginning on the date hereof and ending on the one-year anniversary of the date hereof, Buyer and each Seller (Buyer on the one hand, and each Seller, on the other hand, each an “Employer” with respect to its Restricted Employee) shall not and shall cause their respective Affiliates who is not a Continuing Employee for employment to, directly or in indirectly, on behalf of itself or any other capacity (including as an independent contractor Person solicit or consultant)attempt to solicit, the employment of any Restricted Employee or otherwise encourage, induce, solicit or attempt to encourage, induce or solicit any Restricted Employee to leave the employment of or engagement with Buyer or any of its Affiliates; provided, however, that the foregoing restrictions in clauses (i) and (ii) shall not apply to (A) any general advertisement or use of search firms or recruiters (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, thereof) which is not directed at Transferred Employees or Restricted Employees or (iiiB) solicitations made by third-party search firms that have not been directed by Purchaser the hiring of any Transferred Employee or its Affiliates (including Restricted Employee with the Companies and prior written consent of Buyer or Seller as the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result case may be. For purposes of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element 5.1(b)(ii), the term “Restricted Employee” shall mean any employee of this Agreement and that, but for the agreement of each party to comply Employer with these covenants, whom the other party would not have entered into had contact during the course of the Marketing Agreement or during the negotiation of the transactions contemplated in this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Sabre Corp)
Non-Solicitation. (a) During the period beginning on Employee is performing services for the Closing Date Employer and ending on for a period of one (1) year following the 18-month anniversary termination of the Closing Date, and except as otherwise required or permitted by Employee’s services for the Employer for any Ancillary Agreement, Seller and its Affiliates (collectivelyreason other than termination without “cause”, the “Restricted Entities”) shall Employee agrees that the Employee will not, directly or indirectly, for the Employee’s benefit or for the benefit of any other person, firm or entity, do any of the following:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit from (i) any customer that Employee serviced or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting learned of open positions while in the course employ of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, the Employer (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations“Customer”), or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing any referral sources or posting of open positions in the course of normal hiring practices prospective referral sources which are not specifically sent to, or do not specifically target, employees actively being sought by Employer at the time of Seller or its Affiliates or hiring as Employee’s termination (a result of such posting“Referral Source”), or (iii) solicitations made by third-party search firms that have not any potential customer of the Employer which has been directed by Purchaser the subject of a known written or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals oral bid, offer or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party proposal by the other partyEmployer, whether predicated on the breach or of this Agreement substantial preparation with a view to making such a bid, proposal or otherwiseoffer, shall not constitute within twelve months prior to such Employee’s termination (“Potential Customer”), business of a defense similar nature or related to the enforcement business of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; Employer;
(ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of accept any invalid or unenforceable term or provision, to delete specific words or phrasesbusiness from, or perform any work or services for, any Customer, Referral Source or Potential Customer, which business, work or services is similar to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention business of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and Employer;
(iii) cause or induce or attempt to cause or induce any Customer, Referral Source or Potential Customer, licensor, supplier or vendor of the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.Employer to reduce or sever its affiliation with the Employer;
(div) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that solicit the employment or services of, or hire or engage, or assist anyone else to hire or engage, any breach person who was known to be employed or engaged as a consultant by or was a known employee of this Section 7.7 by or consultant to the other party could not be adequately compensated in all cases by monetary damages alone. AccordinglyEmployer upon the termination of the Employee’s services to the Employer, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.within twelve months prior thereto; or
(ev) For otherwise interfere with the avoidance of doubt, none business or accounts of the restrictions imposed by applicable subsections Employer. For purposes hereof, “solicitation” shall include directly or indirectly initiating any contact or communication of this Section 7.7 shall apply any kind whatsoever for purposes of inviting, encouraging or requesting such Customer, Referral Source, Potential Customer, licensor, supplier, vendor, employee or consultant to materially alter its business relationship, or engage in business, with the Employee or any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such partyperson, firm or entity other than the Employer.
Appears in 2 contracts
Sources: Employment Agreement (Hanover Bancorp, Inc. /NY), Employment Agreement (Hanover Bancorp, Inc. /NY)
Non-Solicitation. Without the prior written consent of Purchaser, neither Seller nor any of its Affiliates shall, for a period of two (a2) During years following the period beginning on Closing, solicit to employ any person who is a Transferred Employee and who is employed by the Closing Date and ending on the 18-month anniversary of the Closing Date, and except Business (whether as otherwise required an employee or permitted by any Ancillary Agreement, independent contractor); provided that Seller and its Affiliates (collectivelyi) may solicit and hire any such Transferred Employee whose employment or other relationship with Purchaser or any of its Affiliates is terminated by Purchaser or any of its Affiliates or (ii) hire such Transferred Employee who responds to a general advertisement not targeted at employees or independent contractors of Purchaser or any of its Affiliates without any solicitation in violation of this Section 8.4. Without the prior written consent of Seller, neither Purchaser nor any of its Affiliates shall, for a period of two (2) years following the “Restricted Entities”) shall notClosing, directly or indirectly:
solicit to employ (i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service person who was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed employed by Seller or any of its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired whether as an employee or independent contractor) in another capacity the Business but who is not a Transferred Employee and who is employed by Seller or any of its Affiliates, (including as an independent contractor ii) any person who was employed by Seller or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary any of the Closing Date it shall not, and shall cause its Affiliates (including whether as an employee or independent contractor) in the Companies Business but who is not a Transferred Employee and who resigned or retired from Seller or any of its Affiliates within six (6) months prior to the Transferred SubsidiariesClosing, (iii) any person who is employed by Seller or any of its Affiliates in Seller’s Other Businesses or (iv) any other employee of Seller or any Affiliate of Seller with whom Purchaser came into contact in connection with the negotiation of this Agreement; provided that Purchaser and its Affiliates (i) may solicit and hire such person whose employment or other relationship with Seller or any of its Affiliates is terminated by Seller or any of its Affiliates or (ii) hire such person who responds to a general advertisement not to, directly targeted at employees or indirectly, solicit, hire or attempt to solicit or hire any employee independent contractors of Seller or any of its Affiliates who is not a Continuing Employee for employment or without any solicitation in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions violation of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified8.4.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Neophotonics Corp), Asset Purchase Agreement (Emcore Corp)
Non-Solicitation. The Grantee covenants and agrees that during the Grantee’s Employment and for a period of twenty-four (a24) During months (and such period shall be tolled on a day-to-day basis for each day during which the period beginning on the Closing Date and ending on the 18-month anniversary Grantee participates in any activity in violation of the Closing Daterestrictions set forth in this Section 12(b)) after the termination of the Grantee’s Employment, and except as otherwise required whether such termination occurs at the insistence of the Company or permitted by any Ancillary Agreement, Seller and its Affiliates the Grantee (collectivelyfor whatever reason), the “Restricted Entities”) Grantee shall not, directly or indirectly:
and shall not assist any other Person to, (i) Induce, hire or solicit or encourage, or attempt to induce, solicit or encourage, for hire any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as employee of the Closing Date (the “Restricted Services”) Company or (2) reduce, terminate any of its Immediate Affiliates or adversely modify the employment seek to persuade any employee of the Companies Company or the Transferred Subsidiaries for such services, in each case other than as a consequence any of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
its Immediate Affiliates to discontinue employment or (ii) Solicit, hire or attempt to solicit or hire encourage any Continuing Employee for employment or in any other capacity (including as an independent contractor providing services to the Company or consultant) any of its Immediate Affiliates to terminate or diminish its relationship with a Restricted Entitythem; provided, however, that after termination of the foregoing Grantee’s Employment, these restrictions shall not apply only with respect to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiariesemployees of, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent and independent contractors providing services to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller Company or any of its Immediate Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, were such on the date that the foregoing shall not apply to Grantee’s Employment terminated or at any time during the nine (i9) individual whose employment or service was terminated by Seller or its Affiliatesmonths immediately preceding such termination date; and, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent toprovided further, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that 5(b) shall not be affected violated by performance (x) any general advertising or nonperformance other general methods of solicitation by another company or search firm not specifically directed at the employees or independent contractors of the Company or any of its Immediate Affiliates or (y) any such hiring, solicitation or encouragement of any other provision of this Agreement. The existence of any claim employee or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement independent contractors of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court Company or any other Governmental Authority of competent jurisdictionits Immediate Affiliates below the level of director, Seller and Purchaser agree that: (i) so long as you had no direct or indirect involvement in such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedactivities.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Employment Agreement (Michaels Companies, Inc.), Restricted Stock Unit Agreement (Michaels Companies, Inc.)
Non-Solicitation. (a) During the Each Seller and Founder agrees that for a period beginning on the Closing Date and ending on the 18-month anniversary of five years following the Closing Date, he or it shall not, and except as otherwise required he or permitted by any Ancillary Agreement, Seller and it shall cause his or its Affiliates (collectively, the “Restricted Entities”) shall notnot to, directly or indirectly:
(ia) Induce, solicit or encourage, or attempt to inducesolicit (x) any Business Employee, solicit or encourageany other person employed by or engaged as a Contractor to the Company or any of its Subsidiaries at any time during the 12 months preceding the Closing Date, or (y) any Restricted Customer then-current employee or individual contractor, or any person who has been an employee or contractor at any time within the then- preceding twelve months (including in the case of contractors any legal Person which is controlled directly or indirectly by any such individual contractor), of Purchaser or any of Purchaser’s Affiliates (including after the Closing the Company and any Subsidiaries of the Company), to (1) use a Restricted Entity cease his or her relationship with Purchaser or any of Purchaser’s Affiliates or to become an employee, contractor or consultant or otherwise to provide services to any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case Person other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted CustomersPurchaser and its Affiliates; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law, hire or employ (x) any Business Employee, or any other person employed by or engaged as a Contractor to the Company or any of its Subsidiaries at any time during the 12 months preceding the Closing Date, or (y) any then-current employee or individual contractor of Purchaser or any of its Affiliates or any person who has been an employee or individual contractor of Purchaser or any of its Affiliates within the then-preceding twelve months (including in the case of contractors any legal Person which is controlled directly or indirectly by any such individual contractor); and provided, that (iiix) the restrictive covenants set forth nothing in this Section 7.7 7.03 shall be enforceable as so modified.
deemed breached by any general advertisement for potential employees that is not directed at Purchaser’s or any of its Affiliates’ employees, (dy) The parties hereby acknowledge each Seller and agree that irreparable damage would occur if Founder shall also have the right to hire any such Person whose employment or engagement has been terminated other than for cause by Purchaser or its Affiliates and (z) each Founder may, in their individual capacities, hire or employ ▇▇▇ ▇▇▇▇▇▇▇ or ▇▇▇ ▇▇▇▇▇▇▇▇. Nothing in this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party 7.03 shall be entitled deemed to enforce this Section 7.7 by a decree limit or modify the non-solicitation obligations of specific performance and each Founder pursuant to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches the terms of this Section 7.7, without posting any bond or other undertakinghis respective separate non-solicitation agreement.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Stock Purchase Agreement (FriendFinder Networks Inc.), Stock Purchase Agreement (FriendFinder Networks Inc.)
Non-Solicitation. (a) During the period beginning on the Closing Date and ending on the 18-month anniversary of the Closing Date, and except as otherwise required or permitted by any Ancillary As an inducement to Buyer to enter into this Agreement, Seller and its Affiliates agrees that, during the twelve (collectively, the “Restricted Entities”12) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of month period commencing on the Closing Date (the “Restricted ServicesPeriod”) or (2) reduce), terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates direct and indirect Subsidiaries to not, whether on their own behalf or jointly with or as an agent for any other Person, (including the Companies and the Transferred Subsidiariesi) not to, directly solicit or indirectly, solicit, hire induce or attempt to solicit or hire induce (including by recruiting, interviewing or identifying or targeting as a candidate for recruitment) any employee of Seller Transferred Employee to terminate, restrict or hinder such person’s employment or association with TEGNA or any of its Affiliates who is not a Continuing Employee for employment subsidiaries or interfere in any other capacity way with the relationship between such individual and TEGNA or any of its Subsidiaries or (including ii) hire or offer to hire or employ any Transferred Employee as an independent contractor employee or consultant)consultant in any capacity; provided, however, that (x) general solicitations (of a bona fide nature) published in a journal, newspaper or other publication or posted on an Internet job site or social media and not specifically directed towards any such individual (and hiring or offering to hire any individual as a result thereof) and (y) soliciting or hiring any individual whose employment with TEGNA or any of its Subsidiaries terminated at least six (6) months prior to the foregoing commencement of employment discussions between Seller or Tribune or any of their respective Subsidiaries or Affiliates and such individual shall not apply constitute a breach of the covenant in this Section 6.6(a).
(b) As an inducement to Seller to enter into this Agreement, TEGNA agrees that during the Restricted Period, TEGNA shall not, and shall cause its direct and indirect Subsidiaries to not, whether on their own behalf or jointly with or as an agent for any other Person, (i) solicit or induce or attempt to solicit or induce (including by recruiting, interviewing or identifying or targeting as a candidate for recruitment) any corporate-level employee of Seller or Tribune to terminate, restrict or hinder such person’s employment or association with Seller or Tribune or interfere in any way with the relationship between such individual and Seller or Tribune or (ii) hire or offer to hire or employ as an employee or consultant in any capacity any such corporate-level employee of Seller or Tribune without the prior written consent of Seller; provided that (x) general solicitations (of a bona fide nature) published in a journal, newspaper or other publication or posted on an Internet job site or social media and not specifically directed towards any such individual (and hiring or offering to hire any individual as a result thereof) and (y) soliciting or hiring any individual whose employment or service was terminated by with Seller or Tribune terminated at least six (6) months prior to the commencement of employment discussions between Buyer or any of its Affiliates, (ii) publishing Subsidiaries or posting Affiliates and such individual shall not constitute a breach of open positions the covenant in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitationsthis Section 6.6(b).
(c) The parties acknowledge Each of the Parties acknowledges and agrees that the covenants set forth restrictions contained in this Section 7.7 6.6 are an essential element reasonable in scope and duration in light of the purpose and intent of this Agreement and thatthe valuable consideration being conveyed by the Parties as provided herein and are necessary to protect Buyer and its Affiliates. If, but for any reason any Governmental Authority determines that any of those restrictions is not reasonable or are overbroad or unenforceable or that the agreement consideration is inadequate in any jurisdiction or context, such restrictions shall be interpreted, modified or rewritten to include as much of each party to comply with these covenants, the other party would not have entered into this Agreementduration and scope as will render such restrictions valid and enforceable. The parties acknowledge agree that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have 6.6 shall be enforced independently consulted with their respective counsel of any other obligations between or among the Parties, and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination existence of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination claim or defense shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such partyor the remedies hereunder.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Tegna Inc), Asset Purchase Agreement (Nexstar Media Group, Inc.)
Non-Solicitation. (a) During To preserve the value and goodwill of the business of the Company being transferred to Parent as part of the Merger, Stockholder further agrees that during the period beginning commencing on the Closing Date and ending on the 18-month anniversary of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 1836-month anniversary of the Closing Date it or the termination of Stockholder’s employment with Parent or Merger Sub Two or any subsidiary thereof, whichever occurs later (or, in the event any reviewing court finds thirty-six (36) months to be overbroad and unenforceable, ending on the 24-month anniversary of the Closing Date or the termination of Stockholder’s employment with Parent or Merger Sub Two or any subsidiary thereof, whichever occurs later) (or, in the event any reviewing court finds twenty-four (24) months to be overbroad and unenforceable, ending on the 12-month anniversary of the Closing Date or the termination of Stockholder’s employment with Parent or Merger Sub Two or any subsidiary thereof, whichever occurs later) (the “Non-Solicitation Period”), Stockholder shall not, and shall cause its Affiliates (including without the Companies and the Transferred Subsidiaries) not toprior written consent of Parent, solicit, encourage, or take any other action, directly or indirectly, solicitthat is intended to induce or encourage, hire or attempt to solicit has the effect of inducing or hire encouraging, any employee of Seller Merger Sub Two or Parent, or any subsidiary of Merger Sub Two or Parent, to (i) leave his or her employment with Merger Sub Two or Parent, or any subsidiary of Merger Sub Two or Parent, or any of its Affiliates who is not a Continuing Employee for employment their respective successors or in any other capacity (including as an independent contractor assigns or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing engage in any activity in which Stockholder would, under the provisions of Section 2 hereof, be prohibited from engaging. Notwithstanding the foregoing, for purposes of this Agreement, the placement of general advertisements that may be targeted to a particular geographic or posting of open positions in the course of normal hiring practices which technical area but that are not specifically sent to, or do not specifically target, targeted toward employees of Seller Merger Sub Two or its Affiliates Parent or hiring as a result any subsidiary of such postingMerger Sub Two or Parent or their respective successors or assigns, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found deemed to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking3.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Non Competition Agreement, Non Competition Agreement (Limelight Networks, Inc.)
Non-Solicitation. (a) During From the period beginning on Spin-Off Date until the Closing Date and ending on date that is three (3) years after the 18Spin-month anniversary of the Closing Off Date, SpinCo shall not, and except as otherwise required or permitted by any Ancillary Agreement, Seller shall cause each of its Affiliates and its Affiliates and their Representatives (collectivelyto the extent acting on their behalf) not to, without the “Restricted Entities”) shall notprior written consent of Cogint, directly or indirectly:
, (i) Induce, solicit for employment (or encourage, service) or attempt to induce, solicit employ (or encourage, engage) any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as current officer or non-administrative employee of the Closing Date Cogint Group (the “Restricted ServicesCogint Group Employees”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire knowingly induce or attempt encourage any Cogint Group Employee to solicit no longer be employed by or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entityprovide services to the Cogint Group; provided, however, that nothing in this Section 6.11(a) shall prohibit SpinCo or any of its Affiliates or Representatives from (A) engaging in general solicitations to the foregoing shall public or general advertising, including in periodicals, newspapers, trade publications and the Internet, not apply to directly targeted at the Cogint Group Employees, (B) soliciting or employing any (1) individual whose employment or service was person who has been terminated by the Companies or the Transferred Subsidiariesa Cogint Entity, (2C) publishing employing or posting otherwise working with any Cogint Group Employee who initiates employment discussions with SpinCo or any of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals solely on his or hiring as a result her own initiative without any direct or indirect solicitation by or encouragement from SpinCo or any of such solicitationsits Affiliates, or (4D) individual soliciting or employing any person who approaches has resigned from employment with a Restricted Cogint Entity seeking at least six (6) months prior to be hired as an employee such solicitation or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individualemployment.
(b) Purchaser agrees that from From the Spin-Off Date until the date hereof until that is three (3) years after the 18Spin-month anniversary of the Closing Date it Off Date, Cogint shall not, and shall cause each of its Affiliates and its and their Representatives (including to the Companies and the Transferred Subsidiariesextent acting on their behalf) not to, without the prior written consent of SpinCo, directly or indirectly, solicit, hire (i) solicit for employment (or attempt to solicit service) or hire employ (or engage) any current officer or non-administrative employee of Seller the SpinCo Group (the “SpinCo Group Employees”) or (ii) knowingly induce or encourage any of its Affiliates who is not a Continuing SpinCo Group Employee for employment to no longer be employed by or in any other capacity (including as an independent contractor or consultant)provide services to the SpinCo Group; provided, however, that nothing in this Section 6.11(b) shall prohibit Cogint or any of its Affiliates or Representatives from (A) engaging in general solicitations to the foregoing shall public or general advertising, including in periodicals, newspapers, trade publications and the Internet, not apply to directly targeted at SpinCo Group Employees, (B) soliciting or employing any (i) individual whose employment or service was person who has been terminated by Seller a SpinCo Entity, (C) employing or otherwise working with any SpinCo Group Employee who initiates employment discussions with Cogint or any of its Affiliates solely on his or her own initiative without any direct or indirect solicitation by or encouragement from Cogint or any of its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iiiD) solicitations made by third-party search firms that have not been directed by Purchaser soliciting or its Affiliates employing any person who has resigned from employment with a SpinCo Entity at least six (including the Companies and the Transferred Subsidiaries6) months prior to specifically solicit such individuals solicitation or hiring as a result of such solicitationsemployment.
(c) The parties Cogint and SpinCo acknowledge that the covenants set forth in this Section 7.7 6.11 are an essential element of this Agreement and that, but for reasonable in order to protect the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement value of the covenants contained Restricted Business, its goodwill and the Cogint Group and in this Section 7.7. The light of the activities and nature of the Restricted Business and the businesses of the parties have independently consulted with hereto and their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided Affiliates and the court or Governmental Authority making such determination shall have current plans of the power to reduce Restricted Business and the scope, duration or geographical area businesses of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that the parties hereto and their respective Affiliates. It is valid and enforceable and that comes closest to expressing the intention of the invalid parties that if any restriction or unenforceable provision, covenant contained in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.this
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Cogint, Inc.), Separation and Distribution Agreement (Red Violet, Inc.)
Non-Solicitation. (a) During From the period beginning on Distribution Date until the Closing Date and ending on date that is two (2) years after the 18-month anniversary of the Closing Distribution Date, New BBX Capital shall not, and except as otherwise required or permitted by any Ancillary Agreement, Seller shall cause each of its Affiliates and its Affiliates and their Representatives (collectivelyto the extent acting on their behalf) not to, without the “Restricted Entities”) shall notprior written consent of Parent, directly or indirectly:
, (i) Induce, solicit for employment or encourageservice, or attempt employ or engage (or refer to induceanother Person for the purpose of such Person soliciting for employment or service, solicit or encourage, employing or engaging) any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as then-current employee of the Closing Date Parent Group (the “Restricted ServicesParent Group Employees”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire knowingly induce or attempt encourage any Parent Group Employee to solicit no longer be employed by or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entityprovide services to the Parent Group; provided, however, that nothing in this Section 6.11(a) shall prohibit New BBX Capital or any of its Affiliates or Representatives from (A) engaging in general solicitations to the foregoing shall public or general advertising, including in periodicals, newspapers, trade publications and the Internet, not apply to directly targeted at the Parent Group Employees, (B) soliciting or employing any (1) individual whose employment or service was person who has been terminated by the Companies or the Transferred Subsidiariesa Parent Entity, (2C) publishing employing or posting otherwise working with any Parent Group Employee who initiates employment discussions with New BBX Capital or any of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals solely on his or hiring as a result her own initiative without any direct or indirect solicitation by or encouragement from New BBX Capital or any of such solicitationsits Affiliates, or (4D) individual soliciting or employing any person who approaches has resigned from employment with a Restricted Parent Entity seeking at least six (6) months prior to be hired as an employee such solicitation or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individualemployment.
(b) Purchaser agrees that from From the Distribution Date until the date hereof until that is two (2) years after the 18-month anniversary of the Closing Date it Distribution Date, Parent shall not, and shall cause each of its Affiliates and its and their Representatives (including to the Companies and the Transferred Subsidiariesextent acting on their behalf) not to, without the prior written consent of New BBX Capital, directly or indirectly, solicit, hire or attempt to (i) solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in service, or employ or engage (or refer to another Person for the purpose of such Person soliciting for employment or service, or employing or engaging) any other capacity then-current employee of the New BBX Capital Group (including as an independent contractor the “New BBX Capital Group Employees”) or consultant)(ii) knowingly induce or encourage any New BBX Capital Group Employee to no longer be employed by or provide services to the New BBX Capital Group; provided, however, that nothing in this Section 6.11(b) shall prohibit Parent or any of its Affiliates or Representatives from (A) engaging in general solicitations to the foregoing shall public or general advertising, including in periodicals, newspapers, trade publications and the Internet, not apply to directly targeted at New BBX Capital Group Employees, (B) soliciting or employing any (i) individual whose employment or service was person who has been terminated by Seller a New BBX Capital Entity, (C) employing or otherwise working with any New BBX Capital Group Employee who initiates employment discussions with Parent or any of its Affiliates solely on his or her own initiative without any direct or indirect solicitation by or encouragement from Parent or any of its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iiiD) solicitations made by third-party search firms that have not been directed by Purchaser soliciting or its Affiliates employing any person who has resigned from employment with a New BBX Capital Entity at least six (including the Companies and the Transferred Subsidiaries6) months prior to specifically solicit such individuals solicitation or hiring as a result of such solicitationsemployment.
(c) The parties Notwithstanding the foregoing, Sections 6.11(a) and (b) shall not restrict or prohibit the employment or engagement of any individual who is agreed by the Parties to serve as an officer or employee of both a member of the Parent Group and a member of the New BBX Capital Group following the Spin-Off, including, without limitation, the individuals to serve as executive offices of both Parent and New BBX Capital following the Spin-Off as described in the Information Statement.
(d) Parent and New BBX Capital acknowledge that the covenants set forth in this Section 7.7 6.11 are an essential element reasonable in order to, among other things, protect the value of this Agreement their respective businesses and that, but for goodwill. It is the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement intention of the covenants Parties that if any restriction or covenant contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical 6.11 is held to cover a geographic area and in all other respects. If any such covenant is found or to be invalid, void or unenforceable in any situation in any jurisdiction by for a final determination length of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall time which is not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; , or in any way construed to be too broad or to any extent invalid, such restriction or covenant may be amended by a court of competent jurisdiction to interpret or reform (including by substitution, addition or deletion of words and numbers) this Section 6.11 to provide for a covenant having the maximum enforceable geographic area, time period and other provisions (iii) the restrictive covenants set forth not greater than those contained in this Section 7.7 shall 6.11) that would be valid and enforceable as so modifiedunder such Law.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (BBX Capital Florida LLC), Separation and Distribution Agreement (BBX Capital Florida LLC)
Non-Solicitation. (a) During From the period beginning on Closing Date until twelve (12) months following the Closing Date and ending on without the 18-month anniversary prior written consent of the Closing DateBuyer, Seller agrees that it will not, and except as otherwise required or permitted by any Ancillary Agreement, Seller and will cause its Affiliates (collectivelynot to, the “Restricted Entities”) shall not, directly solicit for employment or indirectly:
hire or employ any of (i) Inducethe current employees of Buyer or its Affiliates to whom Seller or its Affiliates had been directly or indirectly introduced or otherwise had contact with as a result of its or their consideration, solicit negotiation or encourageconsummation of the transactions contemplated by this Agreement, so long as they are employed by Buyer or its Affiliates or (ii) any employee of the Business who is a Re-Hired Employee, or induce, or attempt to induce, solicit or encourage, any Restricted Customer employee referred to in the foregoing clauses (1i) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicitto terminate his or her employment with, hire or attempt to solicit otherwise cease his or hire any Continuing Employee for employment her relationship with Buyer or in any other capacity (including as an independent contractor or consultant) with a Restricted Entityits Affiliates; providedprovided that, however, that the foregoing restriction shall not apply to any such employee of Buyer or its Affiliates or employee of the Business who responds to general solicitation employment advertising in the media not directed specifically toward the employees of Buyer or its Affiliates or Re-Hired Employees of the Business.
(1b) individual whose From the Closing Date until twelve (12) months following the Closing Date and without the prior written consent of Seller, Buyer agrees that it will not, and will cause its Affiliates not to, solicit for employment or service was terminated by hire or employ any of (i) the Companies current employees of Seller or the Transferred Subsidiaries, (2) publishing its Affiliates to whom Buyer or posting of open positions in the course of normal hiring practices which are not specifically sent to, its Affiliates had been directly or do not specifically target, Continuing Employees indirectly introduced or hiring otherwise had contact with as a result of such postingits or their consideration, (3) solicitations made negotiation or consummation of the transactions contemplated by third-party search firms that have not been directed this Agreement, so long as they are employed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result (ii) any employee of such solicitationsthe Business who is an Excluded Employee other than in accordance with the express provisions of this Agreement, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall notinduce, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire induce, any employee of referred to in the foregoing clauses (i) and (ii) to terminate his or her employment with, or otherwise cease his or her relationship with Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant)Affiliates; providedprovided that, however, that the foregoing restriction shall not apply to any (i) individual whose employment or service was terminated by such employee of Seller or its Affiliates, (ii) publishing Affiliates or posting employee of open positions the Business who responds to general solicitation employment advertising in the course of normal hiring practices which are media not directed specifically sent to, or do not specifically target, toward the employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement Excluded Employees of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedBusiness.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Peabody Energy Corp)
Non-Solicitation. (a) During the period beginning on the Closing Date and ending on the 18-month anniversary of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, Seller Parent agrees that from and after the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as date of this Agreement until one year after the Closing Date (the “Restricted ServicesNon-Solicitation Period”) ), they shall not, and shall cause the Non-Company Affiliates not to request or (2) reduce, terminate induce any Person who is at any time from the date of this Agreement to the Closing Date employed by the Company or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than any Company Subsidiary as a consequence vice president or higher officer to terminate his or her employment with the Company and the Company Subsidiaries, except in the ordinary course of a general solicitation conducted by a Restricted Entity business, and except for employees that are not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted EntityTransferred Employees; provided, however, that the foregoing shall not apply (i) to solicitations made by job opportunity advertisements and headhunter searches directed to the general public rather than targeting any employees of the Company or the Company Subsidiaries or (ii) with respect to any (1) individual whose employment or service was employee who has been terminated by the Companies Company or the Transferred Subsidiaries, Company Subsidiaries (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, has voluntarily left his or do not specifically target, Continuing Employees or hiring as a result of her employment more than six months prior to such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individualsolicitation).
(b) Purchaser Investor agrees that from during the date hereof until the 18Non-month anniversary of the Closing Date Solicitation Period, it shall not, and it shall cause its Affiliates (including the Companies Company and the Transferred Company Subsidiaries) not to, directly or indirectly, solicit, hire request or attempt to solicit or hire induce any employee of who is not a Transferred Employee or any Person who is at any time during the Non-Solicitation Period employed by Seller or any of its Affiliates who is not Non-Company Affiliates, in each case, as a Continuing Employee for vice president or higher officer (whether at the Seller Parent corporate or business division level) with whom it had contact in the course of evaluating and negotiating a possible transaction involving the Company with Seller, to terminate his or her employment with Seller or in any other capacity (including as an independent contractor or consultant)of its Non-Company Affiliates; provided, however, that the foregoing shall not apply to any (i) individual whose employment to solicitations made by job opportunity advertisements and headhunter searches directed to the general public rather than targeting any employees of Seller or service was any of its Affiliates or (ii) with respect to any employee who has been terminated by Seller or any of its Affiliates, as applicable, (iior has voluntarily left his or her employment) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of more than six months prior to such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitationssolicitation.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Investment Agreement (Unistrut International Holdings, LLC), Investment Agreement (Tyco International LTD)
Non-Solicitation. (a) During the period beginning Except while acting on the Closing Date and ending on the 18-month anniversary behalf of the Surviving Corporation or its subsidiaries in its capacity as an officer, director, employee or other agent of such Person, each Seller agrees that, for a one (1) year period commencing on Closing Date, and except such Seller shall not solicit, seek to hire or hire, whether as otherwise required an employee, agent, independent contractor, manager, partner, venturer or permitted by otherwise, any Ancillary Agreementof the retained employees set forth on Exhibit D (each, Seller and its Affiliates (collectively, the a “Restricted EntitiesEmployee”) shall not), directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies unless Buyer or the Transferred Subsidiaries for Surviving Corporation gives its written consent to such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entityoffer of employment; provided, however, that the foregoing provisions of this subsection (a) shall not apply to the solicitation or hiring of (i) any Restricted Employee after the expiration of one hundred and eighty (1180) individual whose employment or service was terminated days from the time such Restricted Employee ceases to be employed by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, Company or (4ii) individual any Restricted Employee who approaches responds to a Restricted Entity seeking general solicitation that is a public solicitation of prospective employees and not directed specifically to be hired as an employee employees of the Company or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individualany Subsidiary.
(b) Purchaser agrees Each Seller acknowledges that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1a) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) 7 are reasonable and necessary to protect the offending term or provision shall be reformed rather than voided legitimate interests of Buyer and the court or Governmental Authority making such determination shall have the power to reduce the scopeSurviving Corporation, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iiib) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach violation of this Section 7.7 by 7 will result in irreparable injury to Buyer, the other party could exact amount of which will be difficult to ascertain, and the remedies at law for any such violation would not be adequately compensated in all cases by monetary damages alonereasonable or adequate compensation to Buyer for such a violation. Accordingly, each Seller agrees that if it violates the provisions of this Section 7, in addition to any other right or remedy to which such party may be entitled, available at law or in equity or under this Agreementequity, such party Buyer shall be entitled to enforce this Section 7.7 by a decree of seek specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches in any action instituted in any court of this Section 7.7competent jurisdiction, without posting any bond or other undertakingsecurity, and without the necessity of proving actual damages.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Merger Agreement (Blackhawk Network Holdings, Inc), Seller Support Agreement (Blackhawk Network Holdings, Inc)
Non-Solicitation. (a) During the period beginning of your employment with the Company or any of its affiliates, and for a period of months after the cessation of your employment for any reason, whether with or without Cause, you will not, directly or indirectly , on your own behalf or on behalf of any other person, and whether through your own efforts or through the Closing Date and ending efforts or employing the assistance of any other person (including without limitation any consultant or any person employed by or associated with any person with whom you become employed or associated):
a) call on the 18-month anniversary or solicit in any manner any customer of the Closing Date, and except as otherwise required Company or permitted any of its affiliates for the purpose of doing business of the type done by the Company or any Ancillary of its affiliates with such customer. For purposes of this Agreement, Seller “customer” means any individual, firm, partnership, corporation, or other entity or person (i) currently doing business or who has done business with the Company or any of its affiliates in the 12 months prior to the cessation of your employment, or (ii) any prospective customer that you know to be a prospective customer of the Company or any of its affiliates and with whom the Company or any of its Affiliates affiliates is in discussion with and reasonably expects to do business; or
b) Solicit or otherwise induce any employee of the Company or any of its affiliates to leave the employ of the Company or any of its affiliates. To the extent the terms of this Section 18 are less restrictive (from your perspective) than comparable non-solicitation restrictions agreed to by you pursuant to any Option agreement or Restricted Stock agreement dated prior to the date hereof (collectively, the “Restricted EntitiesPrior Agreements”) ), the terms of this Section 18 shall notsupersede and replace the comparable non-solicitation provisions in each such Prior Agreement. By accepting and agreeing to the terms of this Agreement, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as you acknowledge that your receipt of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment grant of the Companies or Award evidenced by this Agreement represents adequate consideration for the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants undertaking set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified18.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Restricted Stock Agreement (People's United Financial, Inc.), Restricted Stock Agreement (People's United Financial, Inc.)
Non-Solicitation. (a) During the For a period beginning commencing on the Closing Date date of this Agreement and ending on the 18-month second anniversary of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted ServicesNonsolicitation Period”) ), neither Buyers nor the Company shall, directly or indirectly, for itself or on behalf of or in conjunction with any other person (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence holder of not more than one percent (1%) of the outstanding stock of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicitcorporation), hire nor shall it permit any of its subsidiaries, directors, officers, employees, agents, advisors or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not representatives to, directly or indirectly, solicitcall upon any person who is, hire or attempt to solicit or hire any at the time the person is called upon, an employee of Seller Parent, for the purpose or with the intent of soliciting such employee away from or out of the employ of Parent, or employ or offer employment to any person who was or is employed by Parent unless such person shall have ceased to be employed by Parent for a period of at least six months; provided, that, at the request of any Buyer or any Affiliate thereof, Parent may, in its sole discretion, determine to waive this provision with respect to one or more such employees of Parent, such waiver to be evidenced in a writing delivered by Parent to such Buyer; provided, further, that notwithstanding anything to the contrary in this Agreement, for a period of six (6) months after the Closing the Company may solicit up to an aggregate of ten (10) employees of Parent (excluding employees of Parent employed by Force or any of its Affiliates who is not a Continuing Employee subsidiaries) for purposes of post-Closing employment or in any other capacity (including as an independent contractor or consultant)with the Company and; provided, howeverfurther, that in the foregoing event Buyers or the Company hire any such employee at any time during the Continuation Period, such employee shall be deemed to be a “Transferred Employee” for all purposes hereunder as of the respective date of hire.
(b) During the Nonsolicitation Period, Parent shall not, directly or indirectly, for itself or on behalf of or in conjunction with any other person (other than as a holder of not apply more than one percent (1%) of the outstanding stock of a corporation), nor shall it permit any of its subsidiaries, directors, officers, employees, agents, advisors or representatives to, directly or indirectly, call upon any person who is, at the time the person is called upon, an employee of the Company, for the purpose or with the intent of soliciting such employee away from or out of the employ of the Company, or employ or offer employment to any person who was or is employed by the Company unless such person shall have ceased to be employed by the Company, as applicable, for a period of at least six (i6) individual whose employment months; provided, that, at the request of Parent, any Buyer may, in its sole discretion, determine to waive this provision with respect to one or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, more such employees of Seller or its Affiliates or hiring as the Company, such waiver to be evidenced in a result of writing delivered by such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) Buyer to specifically solicit such individuals or hiring as a result of such solicitationsParent.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement foregoing Sections 5.11(a) and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that (b) shall not be affected by performance deemed to prohibit any person from engaging in general media advertising or nonperformance of any other provision of this Agreement. The existence of any claim solicitation that may be targeted to a particular geographic or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical technical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision but that is valid and enforceable and that comes closest to expressing not targeted towards employees of Parent (in the intention case of Section 5.11(a)) or the invalid or unenforceable provision, Company (in order to render the restrictive covenants set forth in this case of Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified5.11(b)).
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach For purposes of this Section 7.7 by 5.11, references to “Parent” shall mean Parent, together with its Affiliates (excluding the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition Company Entities and Parent Brazil with respect to any other right or remedy the Brazilian Operations) and references to which such party may be entitled, at law or in equity or under this Agreement, such party the Company shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none mean each of the restrictions imposed by applicable subsections Company Entities, Parent Brazil with respect to the Brazilian Operations and Brazil NewCo, as of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such partyand after the BRT Date.
Appears in 2 contracts
Sources: Transaction Agreement (SMART Modular Technologies (WWH), Inc.), Transaction Agreement (Smart Modular Technologies Inc)
Non-Solicitation. (a) During the Agilent agrees that for a period beginning on the Closing Date and ending on the 18-month anniversary of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or two (2) reduce, terminate or adversely modify years from and after the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Separation Date it shall not, and it shall cause each of its Affiliates not to (including and shall not encourage or assist any of its Affiliates to), without the Companies and the Transferred Subsidiaries) not toprior written consent of Verigy, directly or indirectly, solicitsolicit to hire (or cause or seek to cause to leave the employ of Agilent or any of its Affiliates) (i) any Verigy Transferred Employee or (ii) any other Verigy Employee, hire or attempt unless in each case such Person ceased to solicit or hire any be an employee of Seller Verigy or its Affiliates prior to such action by Agilent or any of its Affiliates, or, in the case of such Person's voluntary termination of employment with Verigy or any of its Affiliates, at least three (3) months prior to such action by Agilent or any of its Affiliates who is to the extent allowable under Applicable Local Law.
(b) Verigy agrees that for a period of two (2) years from and after the Separation Date it shall not, and it shall cause its Affiliates not a Continuing Employee for employment or in any other capacity to (including as an independent contractor or consultant); provided, however, that the foregoing and shall not apply encourage or assist any of its Affiliates to), without the prior written consent of Agilent, directly or indirectly, solicit to hire (or cause or seek to cause to leave the employ of Agilent or any (iif its Affiliates) individual whose employment any Agilent Employee or service was terminated any Person that it or they know to be employed by Seller Agilent or any of its Affiliates unless such Person ceased to be an employee of Agilent or such Subsidiary prior to such action by Verigy or any of its Affiliates, (ii) publishing or posting of open positions or, in the course case of normal hiring practices which are not specifically sent tosuch Person's voluntary termination of employment with Agilent or any of its Affiliates, at least three (3) months prior to such action by Verigy or do not specifically target, employees any of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including to the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitationsextent allowable under Applicable Local Law.
(c) The parties acknowledge that Notwithstanding the covenants foregoing, the restrictions set forth in this Section 7.7 are an essential element of this Agreement Sections 10.7(a) and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that 10.7(b) shall not be affected apply to (i) bona fide public advertisements for employment placed by performance or nonperformance any Party and not specifically targeted at the employees of any other provision of this Agreement. The existence of any claim Party, or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) any employee who is not a manager or an individual contributor who is engaged in the offending term design of Semiconductor Test Systems or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedprocesses.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Employee Matters Agreement (Verigy Pte. Ltd.), Employee Matters Agreement (Verigy Ltd.)
Non-Solicitation. (a) During the period beginning on the Closing Date and ending on the 18-month anniversary of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) InduceStockholder shall not and shall not authorize or permit its representatives to directly or indirectly (i) initiate, solicit or encourage, or attempt take any action to induce, solicit or encouragefacilitate the making of, any Restricted Customer offer or proposal which constitutes or is reasonably likely to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply lead to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its AffiliatesAcquisition Proposal, (ii) publishing or posting enter into any agreement (other than a confidentiality agreement) with respect to any Acquisition Proposal except in connection with a Superior Proposal in connection with which the Company enters into an agreement (including contemporaneously with the Company) pursuant to Section 5.3(b) of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such postingMerger Agreement, or (iii) solicitations made by thirdin the event of an unsolicited Acquisition Proposal for the Company or otherwise, engage in negotiations or discussions with, or provide any non-party search firms public information or data to, any Person (other than Parent or any of its affiliates or representatives) relating to any Acquisition Proposal. It is understood that have not been directed by Purchaser or its Affiliates (including this Section 8 limits the Companies and rights of Stockholder only to the Transferred Subsidiaries) to specifically solicit such individuals or hiring extent that Stockholder is acting in Stockholder's capacity as a result stockholder of the Company. Nothing herein shall be construed as preventing a Stockholder who is an officer or director of the Company, or any director of the Company who may be deemed to be an affiliate of Stockholder, from fulfilling the obligations of such solicitationsposition (including, subject to the limitations contained in Sections 5.2 and 5.3 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder, or any director of the Company who may be deemed to be an affiliate of Stockholder, acting solely in his or her capacity as an officer or director).
(cii) The parties acknowledge that Notwithstanding anything to the covenants set forth contrary in this Section 7.7 are 8, if (a) after the Company shall have received an essential element unsolicited bona fide written proposal from a Third Party relating to an Acquisition Proposal and (b) the Board of this Agreement Directors of the Company has complied with the provisions of Section 5.2(b) of the Merger Agreement, Stockholder may provide information and that, but for the agreement of each party to comply engage in discussions with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense such Third Party as and to the enforcement extent that the Company is permitted to do so pursuant to the terms of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedMerger Agreement.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Stockholder Agreement (Orbitz Inc), Stockholder Agreement (Cendant Corp)
Non-Solicitation. (a) During the period beginning on the Closing Date and ending on the 18Non-month anniversary of the Closing Date, and except as otherwise required or permitted by any Ancillary AgreementCompetition Period, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates Subsidiaries (including the Companies and other than the Transferred Subsidiaries) not to, (a) directly or indirectly, solicithire, hire engage or employ (as an employee, consultant or otherwise) any New Buyer Employee or other employees of Buyer other than any of the independent contractors set forth on Schedule I attached hereto (collectively, “Buyer Employees”), (b) through any director or officer of Seller, directly or indirectly, solicit for employment or the engagement of services of any Buyer Employee or induce or attempt to solicit induce any Buyer Employee to leave his or hire her employment with Buyer, or in any way intentionally interfere with the employment relationship between any Buyer Employee and Buyer or any Affiliate of Buyer, in each case for the purpose of employing or engaging the services of such Buyer Employee or soliciting such Buyer Employee to become an employee or consultant of Seller or any of its Affiliates who is not a Continuing Employee for employment Subsidiaries or in any other capacity (including as an independent contractor or consultant)Person; provided, however, that the foregoing nothing herein shall not apply to preclude Seller from employing or soliciting any Buyer Employee (i) individual whose employment who independently responds to any public advertisement or service was terminated by Seller general solicitation (such as a newspaper advertisement or its Affiliates, internet posting) not specifically targeting such Buyer Employee or (ii) publishing or posting of open positions in following the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result termination of such postingBuyer Employee’s employment with Buyer for any reason, provided, that Seller has not induced such Buyer Employee to terminate his or her employment in breach of Seller’s obligations hereunder, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that take any action or attempt to take any action with the covenants set forth in this Section 7.7 are an essential element intent of this Agreement and thatimpairing any material relationship, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement contractual or otherwise, shall not constitute a defense to between the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel Buyer and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scopeany customer, durationsupplier, geographical area and in all other respects. If any such covenant is found to be invalidconsultant, void independent contractor, distributor or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedreseller.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Non Competition and Non Solicitation Agreement, Non Competition and Non Solicitation Agreement (Sycamore Networks Inc)
Non-Solicitation. (a) During Parent and each Seller agrees that from and after the period beginning on the Closing Date and ending on the date of this Agreement until eighteen (18-month anniversary of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of months after the Closing Date (the “Restricted ServicesNon-Solicitation Period”) ), it shall not, and it shall cause its Subsidiaries not to, directly or indirectly, request or induce any person who is either at any time from the date of this Agreement to the Closing Date employed primarily in connection with the Business or is employed by Purchaser or any of its Subsidiaries to terminate his or her employment with the Business, Purchaser or any of its Subsidiaries (2) reduceincluding, terminate or adversely modify after the employment of Closing, the Companies or the Transferred Subsidiaries for such servicesPurchased Companies), in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire during the Non-Solicitation Period any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entitysuch employee; provided, however, that the foregoing shall not apply (i) to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been job opportunity advertisements and headhunter searches directed to the general public rather than targeting any employees of Purchaser or any of its Subsidiaries and, with respect to all employees other than senior management of the Business as conducted by Seller or Purchaser and its Affiliates to specifically solicit such individuals or Subsidiaries, the hiring as a result of such solicitations, employees or (4ii) individual with respect to any employee who approaches a Restricted Entity seeking has been terminated by such other party prior to be hired as an employee (or in another capacity (including as an independent contractor has voluntarily left his or consultanther employment more than six months prior to) if no Restricted Entity had previously attempted to solicit such solicitation or hire such individualhiring.
(b) Purchaser agrees that from during the date hereof until the 18Non-month anniversary of the Closing Date Solicitation Period, it shall not, and it shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) Subsidiaries not to, directly or indirectly, solicitrequest or induce any person who is at any time from the date of this Agreement to the Closing Date employed in the Excluded Businesses (other than with respect to the employees being transferred with the Business pursuant to the terms of this Agreement) to terminate his or her employment with the Excluded Businesses, hire or attempt to solicit or hire during the Non-Solicitation Period any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant)such employee; provided, however, that the foregoing shall not apply to any (i) individual whose employment to solicitations made by job opportunity advertisements and headhunter searches directed to the general public rather than targeting any employees of Parent, Sellers or service was terminated by Seller any of their respective Subsidiaries and, with respect to all employees other than senior management of the Excluded Businesses, the hiring of such employees or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of with respect to any employee who has been terminated by such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance prior to (or nonperformance of any other provision of this Agreement. The existence of any claim has voluntarily left his or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (iher employment more than six months prior to) such determination shall not affect the validity solicitation or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedhiring.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Purchase Agreement (Tyco International LTD /Ber/), Purchase Agreement (Aecom Technology Corp)
Non-Solicitation. (a) During Except in connection with marketing the period beginning on the Closing Date and ending on the 18-month anniversary sale of the Closing Date, and except Acquired Assets to Potential Bidders/Qualified Bidders (as otherwise required or permitted shall be defined in the Bid Procedures) in accordance with the Bid Procedures Order after such Order is entered by any Ancillary Agreementthe Bankruptcy Court, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies Representatives and the Transferred Subsidiaries) Affiliates, and its Affiliates’ Representatives not to, directly or indirectly, (i) solicit, hire negotiate, or attempt discuss with any Person, other than Buyer and its Affiliates, agents, and Representatives (and Seller shall, and shall cause its Representatives and Affiliates, and its Affiliates’ Representatives to, immediately cease any such ongoing activity), or enter into any agreement or understanding with respect to, or approve or recommend, or knowingly facilitate, any Alternative Transaction or (ii) provide any Person, other than Buyer and its Affiliates, agents, and Representatives, with access to solicit the books, records, operating data, contracts, documents, or hire other information relating to Seller except to the extent required by Bankruptcy Court order. Seller shall promptly (and in any employee event within twenty-four (24) hours) notify Buyer of any inquiry, indication of interest, proposal, or offer from a third party with respect to an Alternative Transaction received by Seller or any of its Affiliates or its or their employees or Representatives after the date hereof until the Bankruptcy Court shall have entered the Bid Procedures Order, and Seller shall communicate to Buyer the material terms of (including the identity of the Person or Persons making) any such inquiry, indication of interest, proposal, or offer. Seller shall immediately cease to provide access to confidential information about Seller or the Business in connection with any actual or potential Alternative Transaction until the entry of the Bid Procedures Order and shall immediately instruct any Person who does not become a “Qualified Bidder” (as shall be defined in the Bid Procedures) by the Bidding Deadline (as defined in the Bid Procedures), or if so qualified, is not a Continuing Employee for employment designated the “Winning Bidder” or the “Back-up Bidder” (each as shall be defined in the Bid Procedures) at the Auction, in possession of confidential information about Seller or the Business that was furnished by or on behalf of Seller in connection with any other capacity (including as an independent contractor actual or consultant); provided, however, that potential Alternative Transaction to return or destroy all such information or documents or material incorporating such information in accordance with the foregoing confidentiality or similar agreement governing treatment of such confidential information. Seller shall not apply be deemed to any (i) individual whose employment have violated or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions breached their obligations set forth in the course first sentence of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring this Section 8(b) solely as a result of such postingits receipt, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth without engaging in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after conduct prohibited by such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scopesentence, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedan unsolicited Alternative Transaction proposal.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 2 contracts
Sources: Stalking Horse Asset Purchase Agreement (BioRestorative Therapies, Inc.), Asset Purchase Agreement (BioRestorative Therapies, Inc.)
Non-Solicitation. (a1) During the period beginning on the Closing Date and ending on the 18-month anniversary of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
The Company will: (i) Induceimmediately cease and cause to be terminated any activities, solicit discussions or encouragenegotiations that may be ongoing with respect to an Acquisition Proposal, including terminating all access to documents and information regarding the Company and/or its Subsidiaries, including through a data room; (ii) promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring all or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as part of the Closing Date Company (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence described in Section 3.3(4)(ii) hereof), any of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire its Subsidiaries or attempt to solicit or hire any Continuing Employee for employment or in any a portion of their respective assets other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions than in the course Ordinary Course of normal hiring practices which are not specifically sent toBusiness, return or do not specifically target, Continuing Employees destroy all non-public information heretofore furnished to such Person by or hiring as a result on behalf of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) until the restrictive Closing Time or, if earlier, the termination of this Agreement in accordance with Article 7, enforce and not waive (and cause its Subsidiaries to enforce and not waive) the terms of any such confidentiality agreement and any standstill agreement (or similar covenants set forth contained in any other agreement) to which it (or any of its Subsidiaries) is a party relating to an Acquisition Proposal. Except as expressly permitted by this Article 5, until the Closing Time or, if earlier, the termination of this Agreement in accordance with Article 7, the Company will not, except as otherwise provided in the Agreement, and the Company will cause its representatives, its Subsidiaries and its Subsidiaries’ respective representatives not to, directly or indirectly:
(a) solicit, initiate, knowingly encourage or otherwise facilitate (including by way of furnishing any non-public information) any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to, an Acquisition Proposal;
(b) engage or participate in any discussions or negotiations with any Person (other than the Purchaser) regarding any Acquisition Proposal; provided however, that the Company may ascertain facts from the Person making such Acquisition Proposal for the sole purpose of the Board of Directors informing itself about such Acquisition Proposal and the Person that made it, and the Company may, for a period of seven (7) Business Days following the receipt of such Acquisition Proposal, advise any Person of the restrictions of this Agreement, communicate with any Person solely for the purpose of clarifying the terms of any inquiry, proposal or offer made by such Person and advise any Person making an Acquisition Proposal that the Board of Directors has determined that such Acquisition Proposal does not constitute a Superior Proposal;
(c) (i) withhold, withdraw, modify or qualify, or publicly propose to withhold, withdraw, modify or qualify, the Board Recommendation; (ii) make, or permit any representative of the Company or any of its Subsidiaries to make, any public statement in connection with the Meeting by or on behalf of the Board of Directors that would reasonably be expected to have the same effect; or (iii) accept, approve, endorse or recommend, or publicly propose to accept, approve, endorse or recommend, any Acquisition Proposal (the actions in this Section 7.7 shall be enforceable as so modified.clause (c), an “Adverse Recommendation Change”);
(d) The parties hereby acknowledge and agree accept, approve, endorse, recommend, or publicly propose to accept, approve, endorse or recommend, or take no position or remain neutral with respect to, any publicly disclosed or publicly announced Acquisition Proposal (it being understood that irreparable damage would occur if this Section 7.7 were taking no position with respect to a publicly disclosed or publicly announced Acquisition Proposal for a period of no more than five (5) Business Days following the formal announcement of such Acquisition Proposal will not performed be considered to be in accordance with its specific terms and that any breach violation of this Section 7.7 by 5.1, provided the Board of Directors has rejected such Acquisition Proposal and affirmed the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which Board Recommendation before the end of such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.five (5) Business Day period); or
(e) For the avoidance accept, approve, endorse, recommend or enter into or publicly propose to accept approve, endorse, recommend or enter into, any agreement, any letter of doubtintent, none of the restrictions imposed by applicable subsections of this understanding, agreement or arrangement (other than a confidentiality agreement entered into in compliance with Section 7.7 shall apply 5.2(1)(c)) relating to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be Acquisition Proposal (an Affiliate of such party.“Alternative Transaction Agreement”).
Appears in 1 contract
Non-Solicitation. Between the date hereof and the date which is the two (a2) During the period beginning on the Closing Date and ending on the 18-month year anniversary of the (x) Closing Date, and except as otherwise required Date or permitted by any Ancillary (y) the termination of this Agreement, Seller and its neither Buyer nor Atmel shall or allow their respective Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicitsolicit any employees of the other Party or its Affiliates, hire or, between the date hereof and the Closing Date, the Transferred Entities:
(a) employed in the executive, senior managerial, engineering, technical, R&D, marketing or attempt sales capacity or whose departure from the employment of Atmel, Selling Subsidiaries, the Transferred Entities, or any of their Affiliates would or would be likely to solicit cause material loss to or hire any employee of Seller other negative impact on its or their business; and
(b) in connection with the Contemplated Transactions, with whom Buyer or any of its Affiliates who is not have had contact or about whom Atmel, the Selling Subsidiaries, Atmel UK or any of their Affiliates have made information available to Buyer or any of its Affiliates, with a Continuing Employee for view to inducing such person to leave the employ of Atmel, the Selling Subsidiaries, Atmel UK or any of their Affiliates, as applicable, or violate the terms of his or her Contract, or other employment arrangements, with Atmel, the Selling Subsidiaries, Atmel UK or in any other capacity (including of their Affiliates, as an independent contractor or consultant)applicable; provided, however, that the foregoing nothing in this Section 12.8 shall not apply to prohibit any (i) individual whose employment Party or service was terminated by Seller or its Affiliates, (ii) publishing or posting any of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring from employing any such employee as a result of such postinga general solicitation to the public or general advertising, or, by written consent of the Parties, the solicitation of any individual whose employment with any Party, the Selling Subsidiaries or their respective Affiliates has been terminated for at least twelve (iii12) solicitations made months or by third-party search firms that have not been directed by Purchaser or its Affiliates (including written consent of the Companies and Parties. Each of the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants restrictions set forth in this Section 7.7 are an essential element 12.8 is separate and the provisions of this Agreement and that, but for Section 18.5 shall apply in the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance event of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedpartial unenforceability.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Sources: Share and Asset Purchase and Sale Agreement (Atmel Corp)
Non-Solicitation. (a) During the period beginning on the Closing Date Buyer and ending on the 18-month anniversary of the Closing Dateany affiliate thereof shall not at any time, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Inducerecruit, solicit or encourageinduce in any way any employee, advisor or consultant of Seller or PA&E or any affiliate thereof to terminate his or her relationship with Seller, provided that nothing contained herein shall prohibit Buyer from employing any individual who independently initiates hiring discussions with Buyer or responds to a general advertisement, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicitcontact or solicit any "Clients of Seller" (as defined below) for the express purpose of selling or supplying to Clients of Seller the same products that Buyer sold or supplied to Seller, hire PA&E or attempt to solicit any affiliate thereof. The term "Clients of Seller" shall mean any client or hire any employee customer of Seller or PA&E or any affiliate thereof for which Buyer performs work for or on behalf of its Affiliates who is not a Continuing Employee for employment Seller, PA&E or in any other capacity (including as an independent contractor or consultant)affiliate thereof; provided, however, that the foregoing shall not apply with respect to any (i) individual whose employment person or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees entity that is a Client of Seller for which Buyer has been performing other work prior to or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including after the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element date of this Agreement and thatsuch other work is not for or on behalf of Seller, but for the agreement of each party to comply with these covenantsPA&E or any affiliate thereof ("Independent Work"), the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that then such person or entity shall not be affected by performance deemed to be a Client of Seller with respect to the Independent Work. Notwithstanding the foregoing, nothing contained herein shall prohibit Buyer from (i) selling or nonperformance supplying products to any Client of Seller who independently initiates purchase and sale discussions with Buyer, or (ii) responding to unsolicited requests for proposals or invitations to bid. Buyer acknowledges that any violation of this Section 5.1 will cause irreparable injury to Seller and Buyer agrees that Seller and PA&E and its affiliates, as applicable, will be entitled to extraordinary relief in court, including, but not limited to, temporary restraining orders, preliminary injunctions and permanent injunctions without the necessity of posting a bond or other security and without prejudice to any other provision rights and remedies that Seller may have for a breach of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Pacific Aerospace & Electronics Inc)
Non-Solicitation. (a) During For the period beginning commencing on the Closing Date date of this Agreement and ending expiring on the 18-month second anniversary of the Closing Date, and except as otherwise required or permitted by none of Sellers listed on Schedule C nor any Ancillary Agreement, Seller and its of their respective Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
, without obtaining the prior written consent of Purchaser (which consent may be withheld in its sole discretion), (i) Induce, solicit or encourage, or attempt to induce, encourage or solicit any Company Employee to leave such employment or encourageto accept any other position or employment with Seller, any Restricted Customer to (1) use a Restricted Entity to provide of its Affiliates or any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) other Person; or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in assist any other capacity (including as an independent contractor or consultant) with a Restricted EntityPerson in hiring any Company Employee; provided, however, that the foregoing (ii) of this Section 6.2(a) shall not apply to any (1) individual whose employment Company Employee who has not been employed as a Company Employee or service was by Purchasers or their Affiliates during the preceding six months or who has been terminated by the Companies Purchasers or the Transferred Subsidiariestheir Affiliates; provided further, that this Section 6.2(a) shall not prohibit (2x) publishing general solicitations by Sellers or posting any of open positions in the course of normal hiring practices which their Affiliates for employment through general advertisements that are not specifically sent to, or do not specifically target, Continuing directed at such Company Employees or hiring as a result of such posting, (3y) solicitations made by third-party search firms soliciting or employing any employee through any recruiting firm that have has not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individualtarget Company Employees.
(b) Purchaser Each Seller listed on Schedule C acknowledges and agrees that from (i) the date hereof until covenants and the 18-month anniversary restrictions applicable to it contained in Section 6.1(a) are necessary, fundamental and required for the protection of the Closing Date it shall not, business of Purchasers and shall cause its Affiliates their respective Subsidiaries (including the Companies Company and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultantSubsidiaries after Closing); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided such covenants and the court or Governmental Authority making such determination shall have the power restrictions relate to reduce the scopematters that are of a special, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid unique and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Lawextraordinary value; and (iii) the restrictive a breach by such Seller of any of such covenants set forth or restrictions applicable to him will result in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge irreparable harm and agree damages that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could cannot be adequately compensated by a monetary award, and accordingly Purchasers and their respective Subsidiaries will be entitled to injunctive or other equitable relief to prevent or redress any such breach; (iv) Purchasers would not acquire any of such Seller’s Membership Interests if Seller did not agree to such covenants and restrictions; and (v) such Seller is entering into such covenants and restrictions in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or connection with the transactions contemplated under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Lions Gate Entertainment Corp /Cn/)
Non-Solicitation. (a) During the period beginning on Restricted Period, Mammoth shall not (and shall cause its Affiliates not to) directly, or indirectly through another Person, (i) induce or attempt to induce any employee of the Closing Date Contributor (or any of its Affiliates other than Stingray Pressure Pumping, Stingray Logistics, Muskie or Bison) to leave his or her employment, or in any way interfere with the relationship between the Contributor (or any of its Affiliates other than Stingray Pressure Pumping, Stingray Logistics, Muskie or Bison) and ending on any such employee, (ii) hire any person who was an employee of the 18Contributor (or any of its Affiliates other than Stingray Pressure Pumping, Stingray Logistics, Muskie or Bison) at any time during the six-month anniversary period immediately prior to the date on which such hiring would take place, or (iii) with respect to business of the Closing DateContributor, and except as otherwise required call on, solicit or permitted by service any Ancillary Agreementcustomer, Seller and charterer, lessor, vendor, licensee, licensor or other business relation of the Contributor in order to induce or attempt to induce such Person to cease doing or decrease their business with the Contributor or its Affiliates, or in any way interfere with the relationship between any such customer, charterer, lessor, vendor, licensee, licensor or other business relation of the Contributor or its Affiliates (collectivelyincluding making any negative statements or communications about the Contributor or its Affiliates). Notwithstanding the foregoing, the “Restricted Entities”restrictions set forth in this Section 4.8 shall not prohibit (A) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of employees of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to Contributor who solicit or hire any Continuing Employee Mammoth for employment or in any other capacity (including as an independent contractor B) the solicitation of employees through general advertising (e.g., newspaper or consultant) with a Restricted Entity; providedinternet), however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting hiring of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individualemployees responding thereto.
(b) Purchaser agrees that from If, at the date hereof until the 18-month anniversary time of enforcement of any of the Closing Date it provisions of this Section 4.8, a court determines that the restrictions stated herein are unreasonable under the circumstances then existing, the parties hereto agree that the maximum period, scope or geographical area reasonable under the circumstances shall notbe substituted for the stated period, and scope or area. The Parties further agree that such court shall cause its Affiliates be allowed to revise the restrictions contained herein to cover the maximum period, scope or geographical area permitted by Law.
(including c) Notwithstanding anything to the Companies and contrary contained herein, the Transferred SubsidiariesRestricted Period shall be extended with respect to Mammoth for a period equal to any time period that Mammoth breaches or otherwise is in violation of Section 4.8(a).
(d) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller If Mammoth or any of its Affiliates who is not breaches, or threatens to commit a Continuing Employee for employment or in breach of, any other capacity (including as an independent contractor or consultant); providedof the provisions of this Section 4.8, however, that the foregoing Contributor shall not apply to any have the right and remedy (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting to have the restrictive covenants of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected 4.8 specifically enforced by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller it being agreed that any breach or threatened breach of these restrictive covenants would cause irreparable injury to the Contributor and Purchaser agree that: (i) such determination shall that money damages would not affect provide an adequate remedy to the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms Contributor; and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) to require Mammoth to account for and pay over to the offending term Contributor any profits, monies, accruals, increments or provision other benefits derived or received by Mammoth as the result of any transactions constituting the breach. Each of the rights and remedies set forth herein shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention independent of the invalid or unenforceable provisionothers, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; severally enforceable, and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to to, and not in lieu of, any other right or remedy to which such party may be entitled, rights and remedies available at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertakingequity.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Sources: Contribution Agreement (Mammoth Energy Partners LP)
Non-Solicitation. (a) During the For a period beginning on the Closing Date and ending on the 18-month anniversary of two (2) years following the Closing Date, no Seller shall, and except as otherwise required or permitted by any Ancillary Agreement, each Seller and shall cause its Affiliates (collectively, including OldCo and the “Restricted Entities”Excluded Subsidiaries) shall notand its and their Representatives not to, directly or indirectly:
, (i) Inducerequest, solicit or encourage, induce or attempt to induce, solicit influence any Covered Employee to terminate his or encourage, any Restricted Customer her employment with or service to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Meritas Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
Target Group Schools or (ii) Solicit, hire or attempt employ, or solicit the employment of, or make or extend any offer of employment to, any such Covered Employee. Nothing in this Section 9.13(a) shall restrict or prevent any Seller from making generalized searches for employees by the use of advertisements in media of any form (including trade media) or by engaging search firms that are not instructed to solicit or hire any Continuing Employee for employment or the employees referenced in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing clause (i) or, in either case, hiring any employee who responds to such generalized searches or search firm solicitations. The restrictions of this Section 9.13(a) shall not cease to apply to any a Covered Employee (1x) individual whose employment or service was who is terminated by the Companies a Meritas Company or the Transferred SubsidiariesTarget Group School with or without cause, (2y) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, three (3) solicitations made by third-party search firms that have not been directed by Seller months after the date of voluntary termination of his or its Affiliates to specifically solicit such individuals her employment with the applicable Meritas Company or hiring as a result of such solicitations, Target Group School or (4z) individual who approaches a Restricted Entity seeking set forth on Schedule 9.13(a) if, after such Covered Employee has ceased to provide services to Meritas pursuant to the Transition Services Agreement, any such Person elects not to be hired as an employee employed by any of the Buyer Parties or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individualthe Meritas Companies.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary For a period of two (2) years following the Closing Date it shall notDate, no Buyer Party shall, and each Buyer Party shall cause its Affiliates (including the Companies Surviving Company and the Transferred Included Subsidiaries) and its and their Representatives not to, directly or indirectly, solicit(i) request, hire induce or attempt to influence any Covered Employee to terminate his or her employment with or service to OldCo or the Excluded Subsidiaries or (ii) hire or employ, or solicit the employment of, or hire make or extend any employee offer of Seller employment to, any such Covered Employee. Nothing in this Section 9.13(b) shall restrict or prevent any Buyer Party from making generalized searches for employees by the use of its Affiliates who is not a Continuing Employee for employment or advertisements in media of any other capacity form (including as an independent contractor trade media) or consultant); provided, however, by engaging search firms that are not instructed to solicit the employees referenced in the foregoing shall not apply to any clause (i) individual whose employment or, in either case, hiring any employee who responds to such generalized searches or service was search firm solicitations. The restrictions of this Section 9.13(b) shall cease to apply to a Covered Employee (x) who is terminated by Seller an Excluded Subsidiary or its AffiliatesOldCo with or without cause, (iiy) publishing three (3) months after the date of voluntary termination of his or posting of open positions in her employment with the course of normal hiring practices which are not specifically sent to, applicable Excluded Subsidiary or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, OldCo or (iiiz) solicitations made set forth on Schedule 9.13(b) if, after such Covered Employee has ceased to provide services to Meritas pursuant to the Transition Services Agreement, and any such Person elects not to be employed by third-party search firms that have not been directed by Purchaser any of OldCo or its Affiliates (including the Companies and the Transferred Excluded Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The It is the intention of the parties acknowledge hereto that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall 9.13 be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable enforced to the fullest extent permitted by applicable Law; permissible, and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
deemed subject to automatic modification, to the extent necessary to remain enforceable. The unenforceability (dor the modification to conform to Law) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that of any breach provisions of this Section 7.7 by 9.13 shall not render unenforceable, or impair, the other party could not be adequately compensated in all cases by monetary damages aloneremainder of the provisions of this Section 9.13. Accordingly, if any provision of this Section 9.13 shall be determined to be invalid or unenforceable, such invalidity or unenforceability shall be deemed to apply only with respect to the operation of such provision in addition the particular jurisdiction in which such determination is made and not with respect to any other right provision or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertakingjurisdiction.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Sources: Transaction Agreement (Nord Anglia Education, Inc.)
Non-Solicitation. (a) During the period beginning on the Closing Date and ending on the 18-month anniversary Neither Purchaser nor any of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectivelyexcluding Gilat Israel and its officers and directors, but including the “Restricted Entities”officers and directors of Purchaser and its other Affiliates) shall notwill, directly or indirectly:, through any directors, officers, employees, agents, representatives or otherwise, solicit, initiate, facilitate or encourage (including by way of furnishing or disclosing non-public information) any inquiries or the making of any proposal with respect to any merger, consolidation or other business combination involving Purchaser or its subsidiaries or the acquisition of all or any significant assets or capital stock of or by Purchaser and its subsidiaries (a "Transaction Proposal") or negotiate, explore or otherwise engage in discussions with any Person (other than Gilat Israel or Seller and its representatives) with respect to any Transaction Proposal or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the transactions contemplated hereby.
(ib) InduceNotwithstanding the provisions of Section 6.6(a) hereof, solicit in the event that prior to the consummation of the Sale, the Board of Directors of Purchaser determines in good faith, after consultation with outside counsel, that it is necessary to respond to an Unsolicited Superior Proposal (as defined below) in order to comply with its fiduciary duties to Purchaser's stockholders under applicable Law, the Board of Directors of Purchaser may (subject to this and the following sentences) (x) withdraw or encouragemodify its approval or recommendation of the Sale, this Agreement and the other transactions contemplated hereby, or attempt (y) approve or recommend an Unsolicited Superior Proposal or terminate this Agreement (and concurrently with or after such termination, if it so chooses, cause Purchaser to induceenter into any agreement with respect to any Unsolicited Superior Proposal), solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as but in each of the Closing Date cases set forth in this clause (y), no action shall be taken by Purchaser pursuant to clause (y) until a time that is after the “Restricted Services”fifth (5th) or business day following Seller's receipt of written notice advising Seller that the Board of Directors of Purchaser has received an Unsolicited Superior Proposal, specifying the material terms and conditions of such Unsolicited Superior Proposal and identifying the Person making such Unsolicited Superior Proposal, to the extent such identification of the Person making such proposal does not breach the fiduciary duties of the Board of Directors as advised by outside legal counsel and; provided, that if the Board of Directors takes any action pursuant to the foregoing clauses (x) and (y), Purchaser shall within two (2) reducebusiness days of such action, terminate or adversely modify the employment pay Seller an amount equal to 3% of the Companies consideration payable by Purchaser under Section 2.1 hereof and reimburse Gilat Israel, Seller and the Company for any of their out of pocket expenses (including without limitation fees and expenses of outside professionals) by wire transfer of immediately available funds to an account specified by Seller. For purposes of this Agreement, an "Unsolicited Superior Proposal" means any bona fide, unsolicited, written proposal made by a third party to enter into an agreement with respect to a Transaction Proposal on terms that the Board of Directors of Purchaser determines in its good faith judgment (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be more favorable to Purchaser's stockholders (including Gilat Israel, but solely in its capacity as a stockholder) than the Sale and the other transactions contemplated hereby.
(c) In addition to the obligations of Purchaser set forth in paragraphs (a) and (b) of this Section 6.6, Purchaser shall immediately advise Seller orally and in writing of any request for information or of any Transaction Proposal, the Transferred Subsidiaries for material terms and conditions of such servicesrequest or Transaction Proposal, and to the extent such disclosure is not a breach of the fiduciary duties of the Board of Directors as advised by outside legal counsel, the identity of the Person making such request or Transaction Proposal.
(d) Nothing contained in this Section 6.6 shall prohibit Purchaser from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act, or from making any disclosure to Purchaser's stockholders if, in each case other than as a consequence the good faith judgment of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicitthe Board of Directors of Purchaser, hire or attempt after consultation with outside counsel, failure to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) disclose would be inconsistent with a Restricted Entityits fiduciary duties to Purchaser's stockholders under applicable law; provided, however, that the foregoing shall not apply to neither Purchaser nor its Board of Directors nor any (1) individual whose employment committee thereof shall, except as permitted by Section 6.6, withdraw or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent tomodify, or do not specifically targetpropose publicly to withdraw or modify, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates position with respect to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided Sale and the court other transactions contemplated hereby or Governmental Authority making such determination shall have the power to reduce the scope, duration approve or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrasesrecommend, or propose publicly to replace any invalid approve or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provisionrecommend, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedan Transaction Proposal.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Sources: Acquisition Agreement (Rstar Corp)
Non-Solicitation. (a) During The Seller agrees that, during the period beginning on Restriction Period, the Closing Date Seller shall not, and ending on shall not permit any of the 18-month anniversary Seller’s controlled Affiliates to, directly or indirectly, engage, recruit or solicit for employment or engagement, offer employment to, hire, or enter into any independent contractor relationship with, or otherwise seek to influence any relationship with, without the prior written consent of the Buyer, any employee of any Acquired Company as of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing restriction shall not apply prohibit (i) any public advertisement or posting or other form of general solicitation that is not directed at any or all of such employees and/or hiring any such individuals who respond to such general solicitations, (ii) any (1) individual whose solicitation, engagement, employment or service was hiring of, or offer to, any Person who, at the time of such solicitation, engagement, employment, hiring or offer has involuntarily had his or her employment terminated by the Companies Company or the Transferred any of its Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4iii) individual who approaches a Restricted Entity seeking any solicitation, engagement, employment or hiring of, or offer to, any Person whose employment with the Company or any of its Subsidiaries terminated for any reason at least six (6) months prior to be hired as an employee or engaging in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire any such individual.
(b) Purchaser discussions. The Seller agrees that from that, during the date hereof until Restriction Period, the 18-month anniversary of the Closing Date it Seller shall not, and shall cause its not permit any of the Seller’s controlled Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire without the prior written consent of the Buyer (A) induce any Person which is a customer of any of the Company or attempt its Subsidiaries as of the Closing Date to solicit patronize any Competing Business or hire (B) request or advise any employee Person who is a customer or vendor of Seller the Company or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including Subsidiaries as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scopeClosing Date to reduce, duration, geographical area and in all other respects. If curtail or cancel any such covenant is found to be invalid, void customer’s or unenforceable in any situation in any jurisdiction by a final determination of a court vendor’s business with the Company or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with its Subsidiaries which is a term or provision that is valid and enforceable and that comes closest to expressing the intention Subsidiary as of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedClosing Date.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Sources: Non Competition and Non Solicitation Agreement (Healthsouth Corp)
Non-Solicitation. (a) During the period beginning on the Closing Date and ending on the 18-month anniversary of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) The Company shall not, directly or indirectly:, through any officer, director, employee, representative or agent of the Company or any of its Subsidiaries or otherwise,
(i) Induce, solicit or encourageencourage (including by way of furnishing information or entering into any form of agreement, arrangement or attempt to induceunderstanding) the initiation of any inquiries or proposal regarding any merger, solicit amalgamation, take-over bid, variation of a take-over bid, sale of substantial assets, sale of treasury shares or encourage, rights or interests therein or thereto or similar transactions involving the Company or any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date Company (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment any of the Companies foregoing inquiries or the Transferred Subsidiaries for such services, in each case other than proposals being referred to herein as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customersan "Acquisition Proposal"); or
(ii) Solicitprovide any confidential information to, hire or attempt to solicit or hire any Continuing Employee for employment or participate in any other capacity (including as an independent contractor discussions or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply negotiations relating to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent tosuch transactions with, or do not specifically targetotherwise cooperate with or assist or participate in any effort to take such action by, Continuing Employees any person, corporation, partnership or hiring as a result other entity, organization or division, provided nothing contained in this section 2.2 or any other provision of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.this Agreement shall,
(b) Purchaser agrees that from subject to compliance with section 2.2(c) and Article 3 hereof, prevent the date hereof until Company or the 18-month anniversary board of directors of the Closing Date it shall notCompany from considering, negotiating, approving and recommending to the Shareholders an unsolicited bona fide written Acquisition Proposal for which adequate financial arrangements have been made, or are reasonably likely to, be made, and shall cause which does not expire poor to the Expiry Date, which the board of directors of the Company determines in good faith (after consultation with its Affiliates financial advisors) would, if consummated in accordance with its terms, result in a transaction financially superior to the Shareholders than the transaction contemplated by this Agreement (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt any such Acquisition Proposal being referred to solicit or hire any employee of Seller or any of its Affiliates who is not herein as a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant"Superior Proposal"); provided, however, that the foregoing shall not apply to any or
(i) individual whose employment or service was terminated by Seller or prevent the Company and its Affiliates, officers and directors from complying with Section 138 of the Securities Act (iiAlberta) publishing or posting and similar provisions under applicable Canadian securities laws relating to the provision of open positions in directors' circulars and making appropriate disclosure with respect thereto to the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitationsCompany's shareholders.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement Company shall, and thatshall cause its officers, but for the agreement of each party to comply with these covenantsdirectors, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or employees, representatives and agents to, immediately cease and cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void terminated any existing discussions or unenforceable in negotiations with any situation in parties (other than the Offeror) with respect to any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedpotential Acquisition Proposal.
(d) The parties hereby acknowledge Company shall notify the Offeror within one business day of receiving any request for confidential information or any Acquisition Proposal or inquiry with respect to or which could reasonably be expected to lead to any Acquisition Proposal, the identity of the Person making such request, Acquisition Proposal or inquiry and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific all of the terms and that any breach conditions thereof. Such notification shall initially be made orally, with subsequent written confirmation. In no event shall such notification be made more than one day after the occurrence of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alonerelevant event. AccordinglyThe Company will keep the Offeror fully informed with respect to the status of such request, in addition to any other right Acquisition Proposal or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertakinginquiry.
(e) For If the avoidance board of doubt, none directors of the restrictions imposed Company receives a request for material non-public information from a party who proposes to the Company a bona fide Acquisition Proposal and the board of directors of the Company determines, after being so advised in writing by applicable subsections of this Section 7.7 shall apply the Company's financial advisors, that such proposal is a Superior Proposal pursuant to any Person that is an Affiliate section 2.2(a), then, and only in such case, the Company may, subject to the execution of a confidentiality agreement substantially similar to that then in effect between the Company and the Offeror and compliance by the Company with section 2.2(c) hereof, provide such party with access to this Agreement if such Person ceases to be an Affiliate of such partyinformation regarding the Company.
Appears in 1 contract
Non-Solicitation. (a) During the Shareholder agrees that for a period beginning on the Closing Date and ending on the 18-month anniversary of two (2) years following the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, Shareholder will not directly or indirectly:
: (i) Induce, solicit (other than general solicitations through newspapers or encourageother media of general circulation, or attempt the engagement of professional search firms, not targeted at such employees) any employees of Plaza or its Subsidiaries prior to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted ServicesPlaza Employees”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any Plaza Employee (iY) individual who does not become an employee of PPBI or any of its Subsidiaries or is terminated by PPBI or any of its Subsidiaries without cause on or after the Closing Date; or (Z) whose employment terminated more than six months prior to the time that such Plaza Employee is first solicited for employment following the Closing Date; or service was terminated by Seller or its Affiliates, (ii) publishing knowingly (A) induce, persuade, encourage or posting of open positions in the course of normal hiring practices which are not specifically sent toinfluence or attempt to induce, persuade, encourage or do not specifically target, employees of Seller influence any Person having a business relationship with Plaza or its Subsidiaries and Affiliates prior to the Closing Date, to discontinue, reduce or hiring as a result restrict such relationship with PPBI or its Subsidiaries after the Closing Date, provided that nothing herein shall prevent Shareholder from conducting or engaging in business with any Person who was not solicited in violation of such postingSection 6(a)(ii)(B), or (iiiB) solicit or target the deposits, loans or other products and services from or to Persons who were depositors, borrowers or customers of Plaza or its Subsidiaries on the date of this Agreement, and/or as of the Closing Date, whether by personal contact, by telephone, by facsimile, by mail or other form of solicitation or communication, or in any other way except for general solicitations that are directed to the general public and not directed specifically to Persons who were depositors, borrowers or customers of Plaza or its Subsidiaries on the date of this Agreement, or as of the Closing Date. Notwithstanding the foregoing and for purposes of clarity, nothing herein shall prohibit the Shareholder from exercising Shareholder’s discretion relating to Shareholder’s personal and business banking relationships.
(b) The Shareholder acknowledges and agrees that the business conducted by Plaza and its Subsidiaries is highly competitive and that the covenants made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring Shareholder in this Section 6 are made as a result necessary inducement for PPBI to enter into the Merger Agreement and to consummate the transactions contemplated thereby. It is the desire and intent of such solicitations.the parties to this Agreement that the provisions of this Section 6 shall be enforced to the fullest extent permissible under the laws and public policies of each jurisdiction in which enforcement is sought. It is expressly understood and agreed that although the Shareholder and PPBI each consider the restrictions contained in this Section 6 to be reasonable, if a final determination is made by a court of competent jurisdiction or an arbitrator that the time or territory or any other restriction contained in this Section 6 is unenforceable against any party, the provisions of this Section 6 shall be deemed amended
(c) The parties acknowledge Shareholder acknowledges and agrees that the covenants set forth in this Section 7.7 are an essential element provisions of this Agreement are necessary to protect PPBI’s legitimate business interests and that, but for to protect the agreement value of each party to comply with these covenants, the other party would not have entered into this AgreementPPBI’s acquisition of Plaza. The parties acknowledge Shareholder warrants that this Section 7.7 constitutes an independent covenant that shall these provisions will not be affected by performance unreasonably interfere with his or nonperformance of any other provision of this Agreement. The existence of any claim her ability to earn a living or cause of action against one party by to pursue his or her occupation and the other party, whether predicated on Shareholder has the breach of this Agreement means to support himself or otherwise, shall not constitute a defense to herself and his or her dependents and the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 6 will not impair such ability in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedmanner whatsoever.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitledShareholder will not, at law or any time during the two-year period referred to in equity or under Subsection 6(a) of this Agreement, such party shall be entitled to enforce this Section 7.7 disparage PPBI, its Subsidiaries or any of its Affiliates, or the business conducted by a decree PPBI, its Subsidiaries or any of specific performance and to temporarytheir Affiliates, preliminary and permanent injunctive relief to prevent breaches or threatened breaches any stockholder, member, director, manager, officer, employee or agent of this Section 7.7PPBI, without posting its Subsidiaries or any bond or other undertakingof their Affiliates.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Non-Solicitation. For so long as any Investor holds any Shares and for the twenty-four (a24) During the period beginning on the Closing Date and ending on the 18-month anniversary of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectlymonths thereafter:
(i) InduceSuch Investor shall not, solicit and shall cause each of its Affiliates and representatives (to the extent acting on such Investor’s behalf) not to, without the prior written consent of the Company, and except, to the extent applicable, in the furtherance of such Investors duties as an employee, board member of the Company or its Subsidiaries, directly or indirectly, (i) recruit or otherwise solicit, encourage, seek to persuade or attempt to induce, solicit or encourage, induce any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as employee of the Closing Date Company or any of its Subsidiaries (each a “Company Employee” and collectively, the “Restricted ServicesCompany Employees”) to terminate his or (2) reduceher employment with the Company or any of its Subsidiaries, terminate or adversely modify the employment of the Companies hire any such Company Employee, or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicitsolicit, hire encourage, seek to persuade or attempt induce any independent contractor (other than any attorney, regulatory advisor, accountant, investment banker, broker or similar outside advisor, or actuary, IT service provider or cybersecurity service provider to solicit the Company or its Affiliates) providing services to the Company or any of its Subsidiaries to terminate or diminish his or her relationship with them, or hire any Continuing Employee for employment or in any other capacity (including as an such independent contractor or consultant) with a Restricted Entitycontractor; provided, however, that nothing in this Section 4(a) shall prohibit such Investor or any of his, her or its Affiliates or representatives from (A) conducting generalized searches for employees through the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting use of open positions bona fide public advertisements in the course of normal hiring practices which media or any recruitment efforts conducted by any recruitment agency, in each case that are not specifically sent to, or do not specifically target, Continuing targeted at Company Employees or hiring as a result independent contractors of the Company or its Subsidiaries or (B) taking any of the actions otherwise restricted by this Section 4(a)(i), in respect of any Company Employee who has not been employed with the Company or its Subsidiaries at any point during the six (6)-month period preceding the taking of such posting, (3) solicitations made by third-party search firms that have action or any independent contractor who has not been directed by Seller provided services to the Company or its Affiliates to specifically solicit such individuals or hiring as a result Subsidiaries at any point during the six (6)-month period preceding the taking of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individualaction.
(bii) Purchaser Each Investor hereby agrees that from not to bring, commence or institute any action or proceeding (derivative or otherwise) in law or in equity in any court or before any governmental entity, against the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller Company or any of its Affiliates who is not a Continuing Employee for employment or in any of their respective successors or assigns or any other capacity (including as an independent contractor or consultant); provided, however, that Person challenging the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent tovalidity of, or do not specifically targetseeking to enjoin the operation of, employees any provision of Seller or its Affiliates or hiring as a result of such posting, or this Section 4(a).
(iii) solicitations made by third-party search firms Each Investor acknowledges that have not been directed by Purchaser or its Affiliates (such Investor has carefully read and considered all the terms and conditions of this Agreement, including the Companies restraints imposed upon such Investor pursuant to this Section 4(a). The restrictions and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 4(a) are an essential element in addition to any other obligations that such Investor may have to the Company and any of this Agreement its Affiliates, including any obligations set forth in such Investor’s employment agreement, if applicable, with the Company or any of its Affiliates, any award agreement with respect to equity in the Company or any of its Affiliates, and that, but for the any agreement of each party to comply with these covenants, the other party would not have entered into this in connection with the Purchase Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree Each Investor agrees that the covenants restraints set forth in this Section 7.7 4(a) are necessary for the reasonable and proper protection of the Company and its Affiliates and their confidential or proprietary information or data, employee, customer and supplier relations, the general goodwill of their business and other legitimate interests of the Company and its Subsidiaries, and that each and every one of the restraints is reasonable in scoperespect to subject matter, durationlength of time and geographic area, geographical area and that these restraints, individually or in all other respects. If any the aggregate, will not prevent (in the case such covenant Investor is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (ian individual) such determination shall not affect Investor from obtaining other suitable employment during the validity or enforceability period in which such Investor is bound by the restraints. Each Investor acknowledges that each of these covenants has a unique, substantial and immeasurable value to the Company and its Affiliates and that such Investor (1in the case such Investor is an individual) has sufficient assets and skills to provide a livelihood while such covenants remain in force.
(iv) Notwithstanding any provision to the offending term or provision in any other situation or in any other jurisdiction or (2) contrary herein, each of the remaining terms Company, the Tiptree Investors and provisions the Warburg Investors may pursue, at their respective sole discretion, enforcement of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified4(a).
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Non-Solicitation. (a) During the period beginning on From the Closing Date and ending on until the 18-month anniversary of date that is two (2) years after the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, Subsidiaries will not directly or indirectly:
(i) Induce, without the prior written consent of Purchaser, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates Subsidiaries. Nothing herein shall prevent Seller or any current or future Affiliate of Seller from (x) advertising to specifically solicit the general public any employment opportunities, whether through general newspaper or online advertisement, third-party recruiters, and other general non-targeted recruitment techniques (which advertisements are not targeted at Transferred Employees), (y) hiring any Transferred Employees who respond to such individuals general advertising or hiring as a result of such solicitationswho independently seek employment with Seller, in either case, without any solicitation prohibited by this covenant, or (4z) individual who approaches soliciting and/or hiring a Restricted Entity seeking to be hired as Transferred Employee whose employment was terminated by Purchaser or an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individualAffiliate of Purchaser.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of From the Closing Date it shall notuntil the date that is two (2) years after the Closing Date, Purchaser and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) Subsidiaries will not to, directly or indirectly, solicitwithout the prior written consent of Seller, hire solicit for employment by Purchaser or attempt to solicit or hire its Subsidiaries (i) any Business Employee listed on Section 2.10(a) of the Seller Disclosure Schedule who is not a Transferred Employee, (ii) any employee of Seller or its Subsidiaries listed on Schedule 5.8(b), or (iii) any employee of Seller or its Affiliates Subsidiaries with whom Purchaser had substantive discussions related to the Transactions after the Agreement Date but prior to the Closing. Nothing herein shall prevent Purchaser or any current or future Affiliate of Purchaser from (x) advertising to the general public any employment opportunities, whether through general newspaper or online advertisement, third-party recruiters, and other general non-targeted recruitment techniques (which advertisements are not targeted at any such individual), (y) hiring any such individual who is not a Continuing Employee for responds to such general advertising or who independently seeks employment with Purchaser, in either case, without any solicitation prohibited by this covenant, or in (z) soliciting and/or hiring any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) such individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting an Affiliate of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitationsSeller.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in remedy at law for any breach by any party under this Section 7.7 are reasonable 5.8 would be inadequate and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitledremedies available, at law or in equity or under this Agreement, such party the parties shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporaryperformance, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertakingequitable remedies in the event of any such breach.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Non-Solicitation. (a) During Service Provider hereby covenants and agrees that, during the period beginning on term hereof and for one (1) year after the Closing Date and ending on the 18-month anniversary expiration or other termination of the Closing Date, and except as otherwise required or permitted by any Ancillary this Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) it shall not, directly or indirectly:
(i) Induce, solicit or encourageas an officer, or attempt to inducedirector, solicit or encourageemployee, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reducepartner, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such servicesstockholder, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicitmember, hire or attempt to solicit or hire any Continuing Employee for employment proprietor, consultant, joint venturer, investor or in any other capacity capacity, hire or solicit to perform services (as an employee, consultant or otherwise) or take any actions which are intended to persuade any termination of association of any employee (including as an independent contractor employees of any affiliate of and controlled by Client) of Client or consultant) with a Restricted Entityany of Client's affiliates; provided, however, that the foregoing (i) general solicitations of employment published in a journal, newspaper or other publication of general circulation or listed on any internet job site and not specifically directed towards such employees shall not apply be deemed to constitute solicitation for purposes of this subsection (a), and (ii) any (1) individual whose employment hiring of any employee of Client or service was terminated any of its affiliates by Service Provider will not be prohibited where such hiring is not the result of a solicitation by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individualparty.
(b) Purchaser Client hereby covenants and agrees that from that, during the date term hereof until and for one (1) year after the 18-month anniversary expiration or other termination of the Closing Date this Agreement, it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicitas an officer, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment director, employee, partner, stockholder, member, proprietor, consultant, joint venturer, investor or in any other capacity capacity, hire or solicit to perform services (as an employee, consultant or otherwise) or take any actions which are intended to persuade any termination of association of any employee (including as an independent contractor employees of any affiliate of and controlled by Service Provider) of Service Provider or consultant)any of Service Provider's affiliates; provided, however, that the foregoing shall not apply to any (i) individual whose general solicitations of employment published in a journal, newspaper or service was terminated by Seller other publication of general circulation or its Affiliateslisted on any internet job site and not specifically directed towards such employees shall not be deemed to constitute solicitation for purposes of this subsection (b), and (ii) publishing any hiring of any employee Service Provider or posting any of open positions in its affiliates by Client will not be prohibited where such hiring is not the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made a solicitation by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitationsparty.
(c) The parties acknowledge Service Provider specifically acknowledges and agrees that the covenants time and activity restrictions set forth in subsection (a) above are reasonable and properly required for the protection of Client and its businesses, and Client specifically acknowledges and agrees that the time and activity restrictions set forth in subsection (b) above are reasonable and properly required for the protection of Service Provider. However, each of Service Provider and Client further agrees that if any of the provisions of this Section 7.7 are an essential element 20 is found by any court of this Agreement competent jurisdiction (or legally empowered agency) to be in violation of applicable law or unenforceable for any reason whatsoever, then it is the intention of Service Provider and that, but for Client that such provision or provisions be deemed to be automatically amended to the agreement of each party extent necessary to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel applicable law and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respectspermit enforcement. If any such covenant is found of the provisions of this Section 20 shall be deemed by any court of competent jurisdiction (or legally empowered agency) to be wholly or partially invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability binding effect of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision 20. Service Provider and Client agree that a monetary remedy for breach under this Section 20 shall be reformed rather than voided inadequate, and the court or Governmental Authority making such determination shall have the power will be impracticable and extremely difficult to reduce the scopeprove, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with and further agree (i) that a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordinglysubsection (a) above will cause Client irreparable harm, and that, in addition to any other right rights or remedy remedies available to which such party may be entitledClient, at law or in equity or under this Agreement, such party shall be Client is entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary temporary and permanent injunctive relief to prevent breaches or threatened breaches without the necessity of this Section 7.7proving actual damages, without posting any with a bond or other undertaking.
form of security not being required and specifically waived hereby and (eii) For the avoidance that a breach of doubtsubsection (b) above will cause Service Provider irreparable harm, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply and that, in addition to any Person that other rights or remedies available to Service Provider, Service Provider is an Affiliate entitled to temporary and permanent injunctive relief without the necessity of proving actual damages, with a party to this Agreement if such Person ceases to be an Affiliate bond or other form of such party.security not being required and specifically waived hereby
Appears in 1 contract
Sources: Communications Services Agreement (Inland Retail Real Estate Trust Inc)
Non-Solicitation. (a) During Buyer covenants and agrees that, as an express incentive to induce each Seller to enter into this Agreement, during the period beginning commencing on the Closing Date and ending on the 18-month anniversary of date that is two years following the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall Buyer will not, and shall will cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicitsolicit any employee of Medallion Midstream, hire LLC or attempt any of its Subsidiaries (excluding for the avoidance of doubt any employees working for an entity acquired pursuant to the MOC Purchase Agreement) for employment with the Company or any of its Subsidiaries; provided, that this Section 6.10(a) shall not preclude the Buyer or its Affiliates from soliciting for employment or hiring any such employee who (i) responds to a general solicitation through a general solicitation by or on behalf of the Buyer or its Affiliates that is not targeted at such employees and (ii) has not been employed by Medallion Midstream, LLC or its Subsidiaries for a period of six months prior to the date such individual was first solicited for employment by Buyer or its Affiliate.
(b) Each Seller covenants and agrees that, as an express incentive to induce the Buyer to enter into this Agreement and the MOC Purchase Agreement, during the period commencing on the Closing Date and ending on the earlier of the date that is four years following the Closing Date and the date of the Parent Ultimate Exit, such Seller will not, and will cause its Affiliates not to, directly or indirectly, solicit or hire any employee of Seller the Company for employment with the Company or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant)Subsidiaries; provided, however, that the foregoing this Section 6.10(b) shall not apply to any preclude (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of either Seller or its Affiliates from soliciting any such employee for employment through a general solicitation that is not targeted at such employees or (ii) soliciting or hiring as a result of any such posting, or employee who has been terminated by the Company (iiiother than for cause) solicitations made at least six months prior to the date such individual was first solicited for employment by third-party search firms that have not been directed by Purchaser such Seller or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitationsAffiliate.
(c) Each of Buyer and each Seller agrees and acknowledges that, in the event of a breach or threatened breach of this Section 6.10, such Party and its Affiliates (as third party beneficiaries) will, individually or collectively, be entitled to injunctive relief, as any such breach would cause such Party and its Affiliates irreparable injury for which they would have no adequate remedy at law. Each of Buyer and each Seller also agrees to waive any requirement for the security or posting of any bond in connection with any such remedy. Nothing herein will be construed so as to prohibit any Party or its Affiliates, collectively or individually, from pursuing any other remedies available hereunder, at law or in equity, for any such breach or threatened breach. The parties acknowledge Parties agree that the covenants set forth foregoing restrictions in this Section 7.7 6.10 are an essential element of this Agreement reasonable in all respects and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.76.10 would cause irreparable injury to the other Parties and its Affiliates. The parties have independently consulted with their respective counsel and after such consultation agree that Nevertheless, if any of the covenants aforesaid restrictions are found by a court or arbitrator of competent jurisdiction to be unreasonable, or overly broad as to scope or time, or otherwise unenforceable, the Parties intend for the restrictions set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found 6.10 to be invalid, void or unenforceable in any situation in any jurisdiction modified by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority arbitrator making such determination shall have the power so as to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid be reasonable and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provisionand, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge , to be fully enforced. By agreeing to this contractual modification prospectively at this time, the Parties intend to make this provision enforceable under the Laws of all applicable states and agree other jurisdictions so that irreparable damage would occur if this the entire Section 7.7 were not performed 6.10 as prospectively modified will remain in accordance with its specific terms full force and that any breach of this Section 7.7 by the other party could effect and will not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right rendered void or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertakingillegal.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Sources: Membership Interest Purchase and Sale Agreement (Laredo Petroleum, Inc.)
Non-Solicitation. (a) During the period beginning on the Closing Date and ending on the 18-month anniversary of the Closing Date, and except Except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectivelyexpressly provided in this Article 7, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it Company shall not, and shall cause its Affiliates Subsidiaries not to, and shall not authorize or permit any of its or their Representatives to take any action of any kind that might, directly or indirectly, interfere with the successful and timely completion of the Arrangement, including any action to:
(i) solicit, assist, initiate, encourage or otherwise facilitate (including by way of furnishing or providing copies of, access to or disclosure of, any information, facilities, books or records of the Companies and the Transferred Company or any of its Subsidiaries) any inquiry, proposal or offer from any other Person that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal;
(ii) engage or participate in or otherwise facilitate any discussions or negotiations with any Person (other than Hudbay or its affiliates) in respect of any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal, provided that the Company may advise any Person making an Acquisition Proposal that the Company Board has determined that such Acquisition Proposal does not constitute or is not reasonably expected to result in a Superior Proposal;
(iii) make a Change in Recommendation;
(iv) accept, approve, endorse or recommend, or publicly propose to accept, approve, endorse or recommend, or take no position or remain neutral with respect to, any publicly announced or otherwise publicly disclosed Acquisition Proposal (it being understood that publicly taking no position or a neutral position with respect to a publicly announced, or otherwise publicly disclosed, Acquisition Proposal for a period of no more than five business days following such public announcement or disclosure will not be considered to be in violation of this Section 7.1 provided the Company Board has rejected such Acquisition Proposal and affirmed the Company Board Recommendation before the end of such five business day period (or, in the event that the Company Meeting is scheduled to occur within such five business day period, not later than the third business day prior to the date of the Company Meeting)); or
(v) accept or enter into, or publicly propose to accept or enter into, any Contract (including any letter of intent, agreement in principle, agreement, arrangement or understanding) relating to any Acquisition Proposal (other than a confidentiality agreement permitted by Section 7.3).
(b) The Company shall, and shall direct and cause its Representatives and its Subsidiaries and their respective Representatives to, immediately cease and cause to be terminated any existing solicitation, encouragement, discussion or negotiation with any Person (other than Hudbay and its affiliates) with respect to any inquiry, proposal or offer that constitutes, or may reasonably be expected to constitute or lead to, an Acquisition Proposal, whether or not initiated by the Company, and, in connection therewith, the Company will discontinue access to any of its and its Subsidiaries' confidential information (and not establish or allow access to any of its confidential information, or any data room, virtual or otherwise, in each case, except as permitted by this Agreement) and shall as promptly as reasonably practicable request, and exercise all rights it has (or cause its Subsidiaries to exercise any rights that they have) to require the return or destruction of all confidential information regarding the Company and its Subsidiaries provided in connection therewith to the extent such information has not already been returned or destroyed, and shall use its commercially reasonable efforts to confirm that such requests are honoured in accordance with the terms of such rights. The Company shall not, and shall not authorize or permit any of its Subsidiaries to, directly or indirectly, solicitamend, hire modify or attempt to solicit release any third party from any confidentiality, non-solicitation or hire any employee of Seller standstill agreement (or any of its Affiliates who is not a Continuing Employee for employment or standstill provisions contained in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (iagreement) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such third party may be entitledis a party, at law or in equity terminate, modify, amend or under this Agreementwaive the terms thereof and the Company undertakes to strictly enforce, such party shall be entitled or cause its Subsidiaries to enforce this Section 7.7 by a decree of specific performance and to temporarystrictly enforce, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertakingthe terms thereof.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Non-Solicitation. (a) During the For a period beginning on of twenty-four (24) months from the Closing Date Date, AFG and ending on Seller shall not, and shall cause their respective Affiliates not to, without the 18prior written consent of Buyer, directly or indirectly, solicit for employment, employ or hire any Business Employee; provided, that AFG, Seller and their Affiliates may solicit, employ or hire any such Person who was terminated or otherwise discharged by any of the Acquired Companies or their respective Affiliates at least six (6) months prior to the first such solicitation or employment; provided, further, that nothing in this Section 8.06(a) shall prohibit AFG, Seller or any of their Affiliates from employing or hiring any Person who, after the six-month anniversary of the Closing Date, and except as otherwise required contacts Seller or permitted by any Ancillary Agreement, Seller and of its Affiliates (collectively, the “Restricted Entities”) shall not, directly on his or indirectly:
(i) Induce, solicit her own initiative without direct or encourage, indirect solicitation or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence result of a general solicitation conducted by a Restricted Entity to the public or general advertising not specifically directed at Restricted CustomersTransferred Employees; or
(ii) Solicitprovided, hire or attempt to solicit further, that on and following the Closing, AFG, Seller and their Affiliates may solicit, employ or hire any Continuing Business Employee for employment or in any other capacity (including as who has not received an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting Offer of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individualEmployment.
(b) Purchaser agrees that For a period of twenty-four (24) months from the date hereof until the 18-month anniversary of the Closing Date it Date, Buyer shall not, and shall cause its Affiliates (including the Companies and the Transferred SubsidiariesAcquired Companies) not to, without the prior written consent of Seller, directly or indirectly, solicitsolicit for employment, hire or attempt to solicit employ or hire any employee of Business Employee who does not become a Transferred Employee or any individual who provides transition services pursuant to the Transition Services Agreement; provided, that Buyer and its Affiliates may solicit, employ or hire any such individual (other than any Business Employees who do not become Transferred Employees) who was terminated or otherwise discharged by Seller or any of its Affiliates who is not a Continuing Employee for employment at least six (6) months prior to the first such solicitation or in any other capacity (including as an independent contractor or consultant)employment; provided, howeverfurther, that the foregoing nothing in this Section 8.06(b) shall not apply to prohibit Buyer or any of its Affiliates from employing or hiring any Person (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or other than any Business Employees who do not specifically targetbecome Transferred Employees) who, employees after the six-month anniversary of Seller the Closing Date, contacts Buyer or any of its Affiliates on his or hiring her own initiative without direct or indirect solicitation or as a result of a general solicitation to the public or general advertising not directed at such postingindividuals; provided, or (iii) solicitations made by third-party search firms further, that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth nothing in this Section 7.7 are an essential element 8.06(b) shall prohibit Buyer or any of this Agreement its Affiliates from employing or hiring, with the consent of Seller and thatfollowing the expiration or termination of the Transition Services Agreement, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense Person who provides transition services pursuant to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedTransition Services Agreement.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Sources: Stock Purchase Agreement (American Financial Group Inc)
Non-Solicitation. (a) During From and after the period beginning on the Closing Date and ending on the 18-month anniversary of date hereof until that date that is two (2) years after the Closing Date, and except as otherwise required or permitted by any Ancillary Agreementwithout the prior written consent of Purchaser, each of Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its each of their respective Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicitemploy, hire solicit or otherwise attempt to employ, or receive or accept the performance of services by, any Business Employee who is actively employed as of the date hereof; provided, that, nothing in this Section 4.07(a) shall restrict Seller or any of its Affiliates from (i) offering employment to or hiring (A) persons who respond to a general solicitation or advertisement that is not specifically directed to any Business Employees, (B) persons terminated by Purchaser or any of its Affiliates or that have not worked for Purchaser or any of its Affiliates for a period of six months, in each of (A) and (B), prior to the time such persons contact Seller, or (ii) continuing to employ (A) persons who do not accept Purchaser’s offer of employment pursuant to Section 5.01 (provided that Seller has not violated its obligations under Section 5.01), or (B) employees who are not primarily employed in the Business as of Closing.
(b) From and after the date hereof until that date that is two (2) years after the Closing Date, except as expressly contemplated by Article V of this Agreement, without the prior written consent of Seller, Purchaser shall not, and Purchaser shall cause its Affiliates not to, directly or indirectly, employ, solicit or attempt to solicit or hire employ any employee of Seller or any of its Affiliates (who is not a Continuing Employee for employment Business Employee) with whom Purchaser or in any other capacity of its Affiliates (including as an independent contractor including, after the Closing, the Target Entities) has come into direct or consultant); providedindirect contact or of whom Purchaser or any of its Affiliates (including, howeverafter the Closing, that the foregoing shall not apply to any Target Entities) becomes aware or otherwise acquires knowledge (i) individual whose in connection with the transactions contemplated by this Agreement, (ii) through any Transferred Business Employee or (iii) in connection with any services provided pursuant to the Transition Services Agreement, provided, that, nothing in this Section 4.07(b) shall restrict Purchaser or any of its Affiliates from offering employment to or service was hiring (i) persons who respond to a general solicitation or advertisement that is not specifically directed to any employees of Seller or any of its Affiliates or (ii) persons terminated by Seller or its Affiliates, (ii) publishing or posting any of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser worked for Seller or any of its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as for a result period of such solicitations.
(c) The parties acknowledge that the covenants set forth six months, in this Section 7.7 are an essential element of this Agreement and thateach case, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense prior to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after time such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedpersons contact Purchaser.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Albany International Corp /De/)
Non-Solicitation. (a) During From the period beginning on date of this Agreement through the Closing Date and ending on the 18-month second anniversary of the Closing Date, the Sellers’ Representative agrees that it will not, and except as otherwise required or permitted by any Ancillary Agreement, Seller and will cause its Affiliates (collectivelynot to, without the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as prior written consent of the Closing Date (the “Restricted Services”) Buyer, hire, offer to hire or (2) reduce, terminate or adversely modify solicit the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates individuals set forth on Schedule I who are identified as holding options on such schedule (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant“Restricted Employee”); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense notwithstanding anything to the enforcement of the covenants contrary contained in this Section 7.7. The parties 8.16, the Sellers’ Representative may (without being deemed to have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in breached any provision of this Section 7.7 are reasonable 8.16), and proper in scopemay permit their Affiliates to, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void (a) place public advertisements or unenforceable in any situation in any jurisdiction by a final determination of a court or conduct any other Governmental Authority form of competent jurisdictiongeneral solicitation which is not specifically targeted at any Restricted Employee (provided that Seller may only hire a Restricted Employee who responds to such advertisements or solicitation), (b) engage any recruiting firm or similar organization to identify or solicit individuals for employment, as long as such recruiting firm or organization is not instructed by the Sellers’ Representative to target any Restricted Employee, or (c) other than pursuant to clause (i), hire any Restricted Employee at any time more than 90 days after the Company Group terminates the employment of such Restricted Employee.
(b) From the date of this Agreement through the second anniversary of the Closing Date, each Seller agrees that such Seller will not, and Purchaser agree that: will cause its respective Affiliates not to, knowingly, directly or indirectly, (i) such determination shall not affect solicit, induce, or attempt to solicit or induce, any franchisees, developers, suppliers or landlords of the validity Company Group (each a “Supplier”) to terminate his, her or enforceability its respective relationship with the Company Group, as the case may be, for the purpose of (1) associating with or becoming a franchisee, developer, supplier or landlord to either of the offending term Sellers or provision in any other situation their respective Affiliates, or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scopeotherwise knowingly solicit, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrasesinduce, or attempt to replace solicit or induce, any invalid such Supplier to terminate his, her or enforceable term or provision its respective relationship with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to Company Group for any other right purpose or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertakingfor no purpose whatsoever.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Non-Solicitation. (a) During The Affiliated Entities acknowledge that due to prior dealings with the period beginning on Corporation and StormTel, that the Closing Date Affiliated Entities and ending on the 18-month anniversary their employees, officers, directors, shareholders, and agents are familiar with various aspects of the Closing DateCorporation's long distance telephone and communication business, and except as otherwise required that protection of the Customer Base is essential to Corporation's continuing operations.
a. Affiliated Entities hereby agree that neither any of the Affiliated Entities nor any officer, director, shareholder, employee, or permitted by agent of any Ancillary of the Affiliated Entities shall, for a period of four (4) years from and after the date of this Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly, whether as an individual or sole proprietor, or as an owner, partner, officer, director, manager, agent, consultant, employee, or independent contractor, formal or informal adviser, or by or through the lending of any form of assistance, to, for, or on behalf of any organization or business:
(i) InduceSolicit, solicit take away or encourage, or attempt endeavor to induce, solicit or encouragetake away, any Restricted customer included in the Customer Base.
b. The parties expressly acknowledge and agree that the Affiliated Entities may otherwise engage in a business in competition with the Corporation. It will not be considered to be a violation of the non-solicitation provision set forth above, if a customer included in the Customer Base signs up for long distance telephone service through a web site offering of Bu▇▇▇▇▇▇▇▇▇▇.▇▇▇ ▇r YPD, provided that such customer was not targeted and/or solicited by any of the Affiliated Entities, other than the general solicitation set forth in said web site. If any of the Affiliated Entities inadvertently breaches the non-solicitation provisions of this Agreement, the Affiliated Entities shall have an opportunity for a period of thirty (130) use days to cure such breach, by causing the inadvertently solicited customer to be moved back to the Corporation. Notwithstanding the foregoing, the Affiliated Entities shall have no opportunity to cure a Restricted Entity breach in the event of an intentional solicitation in violation of the non-solicitation provisions set forth in this Agreement, and Corporation may immediately exercise all rights and remedies available to provide any services which it.
c. The parties and each of them agree and acknowledge that:
(i) The terms contained in this Agreement are offered necessary for the reasonable and proper protection of the Corporation's interests and the success of its business and that Purchaser would not enter into this Agreement unless, by the Companies and execution of this Agreement, the Transferred Subsidiaries as Affiliated Entities acknowledged their acceptance of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; orthese terms.
(ii) SolicitEach and every covenant and restriction of this Agreement is reasonable, hire or attempt including but not limited to solicit or hire any Continuing Employee for employment or those regarding subject matter, length of time, and specific customers, given the nature of Corporation's operations, and the provisions of this paragraph and all other terms of this Agreement are fully enforceable in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, state in the United States.
d. Employee further agrees that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or four (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element year period of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or non-solicitation provision shall be reformed rather than voided and extended by the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area period of time there is a violation of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach portion of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertakingnon-solicitation provision.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Non-Solicitation. (a) During the period beginning on the Closing Date and ending on the 18-month anniversary of the Closing DateExecutive’s employment by the Company, whether pursuant to this Agreement or otherwise, and except as otherwise required or permitted by for the twelve (12) -month period following the termination of the Executive’s employment with the Company for any Ancillary Agreement, Seller and its Affiliates (collectivelyreason, the “Restricted Entities”) shall Executive will not, without the written consent of the Company, directly or indirectly:
(i) Induce, solicit or encourage, influence or attempt to induce, solicit or encourage, influence any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as customer of the Closing Date (the “Restricted Services”) Company or (2) reduce, terminate or adversely modify the employment any of its affiliates to discontinue its use of the Companies Company’s (or the Transferred Subsidiaries for such servicesaffiliate’s) services or to divert such business to any other person, in each case other than as firm or corporation; provided; however, that a consequence of a broad and general advertisement or solicitation conducted by a Restricted Entity not specifically directed at Restricted Customerstargeting or intending to target customers of the Company or any of its affiliates shall not be deemed a violation of this Section 8; or
(ii) Solicitinterfere with, hire disrupt or attempt to solicit disrupt the relationship, contractual or hire otherwise, between the Company or any Continuing Employee for employment of its affiliates and any of its respective employees, customers, suppliers, lessors or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated licensors. Efforts by the Companies Executive, whether direct or the Transferred Subsidiariesindirect, (2A) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individualassist any other person or entity in soliciting any employee of the Company or any of its affiliates to perform services for any entity (other than the Company or any of its affiliates) or (B) to encourage any employee of the Company, or any of its affiliates to leave their employment with the Company or any of its affiliates shall be in violation of this Section 8. A person’s response to a broad and general advertisement or solicitation, not specifically targeting or intending to target employees of the Company or any of its affiliates shall not be deemed a violation of this Section 8.
(b) Purchaser agrees that from In the date hereof until event the 18-month anniversary Executive materially breaches any of the Closing Date it shall not, and shall cause its Affiliates (including the Companies provisions contained in Section 8(a) hereof and the Transferred Subsidiaries) not toCompany seeks compliance with such provisions by judicial proceedings, directly or indirectly, solicit, hire or attempt the time period during which the Executive is restricted by such provisions shall be extended by the time during which the Executive has been in violation of any such provision and any period of litigation required to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that enforce the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitationsExecutive’s obligations under this Agreement.
(c) The parties acknowledge Executive and the Company intend that the covenants set forth in this Section 7.7 are an essential element 8 of this Agreement and thatbe enforced as written. However, but if one or more of the provisions contained in Section 8 shall for any reason be held to be unenforceable because of the agreement duration or scope of each party to comply with these covenantssuch provision or the area covered thereby, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by Executive and the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation Company agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the full power to reduce reform, by “blue penciling” or any other means, the scopeduration, duration or geographical scope and/or area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or such provision with a term or and in its reformed form such provision that is valid and shall then be enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedbinding on the parties.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Sources: Employment Agreement (Broadway Financial Corp \De\)
Non-Solicitation. (a) During the period Each Seller agrees that, beginning on the Closing Date and ending on continuing until the 18-month three (3) year anniversary of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, such Seller and its Affiliates (collectively, the “Restricted Entities”) shall will not, directly or indirectly:
, for such Seller’s own account or as agent, employee, officer, director, trustee, consultant, member, partner, stockholder or equity owner of any corporation, limited liability company, or any other entity (a) employ or solicit the employment of any person who was employed by the Company or any Newly Granted Permittee at the Closing Date or at any time during the six (6) month period preceding the Closing Date, (b) solicit business in competition with the Business from any Person who during the six-month period preceding the Closing Date will have been a customer of the Company or any Newly Granted Permittee (c) willfully dissuade or discourage any person or entity from using, employing or conducting business with the Company or any Newly Granted Permittee or (d) intentionally disrupt or interfere with, or seek to disrupt or interfere with, the business or contractual relationship between the Company or any Newly Granted Permittee and any supplier, who during the six- month period preceding the Closing Date will have supplied products or services to the Company or any Newly Granted Permittee; provided, that the restrictions in this Section 9.6 will not restrict (i) Induce, the ability of any Seller or its Affiliate to solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, generally in each case other than as a consequence of a general solicitation conducted by a Restricted Entity public advertisements not specifically directed at Restricted Customersto employees, customers, or suppliers of the Company or the Newly Granted Permittees; or
or (ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates from providing services or products to specifically solicit such individuals any customer or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary former customer of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller Company or any of its Affiliates Newly Granted Permittee who is not a Continuing Employee for employment independently seeks products or services without any prior solicitation (except as permitted in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any clause (i)) individual whose employment or service was terminated by such Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Sources: Equity Purchase Agreement
Non-Solicitation. (a) During the The Shareholder agrees that for a period beginning on the Closing Date and ending on the 18-month anniversary of two (2) years following the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, Shareholder will not directly or indirectly:
(i) Induce, solicit (other than general solicitations through newspapers or encourageother media of general circulation, or attempt the engagement of professional search firms, not targeted at such employees) any employees of HEOP or its Subsidiaries prior to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted ServicesHEOP Employees”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any HEOP Employee (iY) individual who does not become an employee of PPBI or any of its Subsidiaries on the Closing Date; or (Z) whose employment or service was terminated by Seller or its Affiliates, more than six months prior to the time that such HEOP Employee is first solicited for employment following the Closing Date; or
(ii) publishing knowingly (A) induce, persuade, encourage or posting influence or attempt to induce, persuade, encourage or influence any Person having a business relationship with PPBI, HEOP or their respective Subsidiaries and Affiliates prior to the Closing Date, to discontinue, reduce or restrict such relationship after the Closing Date or (B) solicit or target the deposits, loans or other products and services from or to Persons who were depositors, borrowers or customers of open positions in HEOP or its Subsidiaries on the course date of normal hiring practices which are not specifically sent tothis Agreement, and/or as of the Closing Date, whether by personal contact, by telephone, by facsimile, by mail or other form of solicitation or communication, or do in any other way except for general solicitations that are directed to the general public and not directed specifically targetto Persons who were depositors, employees borrowers or customers of Seller HEOP or its Affiliates Subsidiaries on the date of this Agreement, or hiring as of the Closing Date. Notwithstanding the foregoing and for purposes of clarity, nothing herein shall prohibit the Shareholder from exercising Shareholder’s discretion relating to Shareholder’s personal and business banking relationships.
(b) The Shareholder acknowledges and agrees that the business conducted by HEOP and its Subsidiaries is highly competitive and that the covenants made by the Shareholder in this Section 6 are made as a result necessary inducement for PPBI to enter into the Merger Agreement and to consummate the transactions contemplated thereby. It is the desire and intent of such postingthe parties to this Agreement that the provisions of this Section 6 shall be enforced to the fullest extent permissible under the Laws and public policies of each jurisdiction in which enforcement is sought. It is expressly understood and agreed that although the Shareholder and PPBI each consider the restrictions contained in this Section 6 to be reasonable, or (iii) solicitations if a final determination is made by third-party search firms a court of competent jurisdiction or an arbitrator that have not been directed by Purchaser the time or its Affiliates (including territory or any other restriction contained in this Section 6 is unenforceable against any party, the Companies provisions of this Section 6 shall be deemed amended to apply as to such maximum time and the Transferred Subsidiaries) territory and to specifically solicit such individuals maximum extent as such court may judicially determine or hiring as a result of such solicitationsindicate to be enforceable.
(c) The parties acknowledge Shareholder acknowledges and agrees that the covenants set forth in this Section 7.7 are an essential element provisions of this Agreement are necessary to protect PPBI’s legitimate business interests and that, but for to protect the agreement value of each party to comply with these covenants, the other party would not have entered into this AgreementPPBI’s acquisition of HEOP. The parties acknowledge Shareholder warrants that this Section 7.7 constitutes an independent covenant that shall these provisions will not be affected by performance unreasonably interfere with his or nonperformance of any other provision of this Agreement. The existence of any claim her ability to earn a living or cause of action against one party by to pursue his or her occupation and the other party, whether predicated on Shareholder has the breach of this Agreement means to support himself or otherwise, shall not constitute a defense to herself and his or her dependents and the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 6 will not impair such ability in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedmanner whatsoever.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitledShareholder will not, at law or any time during the two-year period referred to in equity or under Subsection 6(a) of this Agreement, such party shall be entitled to enforce this Section 7.7 disparage PPBI, its Subsidiaries or any of its Affiliates, or the business conducted by a decree PPBI, its Subsidiaries or any of specific performance and to temporarytheir Affiliates, preliminary and permanent injunctive relief to prevent breaches or threatened breaches any stockholder, member, director, manager, officer, employee or agent of this Section 7.7PPBI, without posting its Subsidiaries or any bond or other undertakingof their Affiliates.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Heritage Oaks Bancorp)
Non-Solicitation. (ai) During the period beginning on the Closing Date Restricted Period and ending on the 18-month anniversary of the Closing Date, and except as unless otherwise required or permitted waived in writing by any Ancillary AgreementBuyer, Seller and its Affiliates (collectively, the “Restricted Entities”) shall will not, directly or indirectly:
, nor will Seller directly or indirectly assist any other Person to, (iA) Inducesolicit, hire or engage in any capacity any employee of Buyer or any of its Affiliates (or any Person who was an employee of Buyer or any of its Affiliates within twelve (12) months preceding the date of such solicitation, hiring, or engagement) or solicit or encourageseek to persuade any employee of Buyer or any of its Affiliates to discontinue employment with Buyer or any of its Affiliates; provided, that Seller will not be restricted from making any general solicitation for employment (in whatever form or attempt to inducemedium) that is not specifically directed at the employees of Buyer; and provided further, solicit or encourage, that Seller will not be restricted from hiring any Restricted Customer to such employee who (1) use a Restricted Entity responds to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) such general solicitation or (2) reducecontacts Seller on that employee’s own initiative, (B) call on or solicit any customer or supplier of Buyer or any of its Affiliates or any independent contractor providing services to Buyer or any of its Affiliates, provided that solicitation of and contact with a Person for the purpose of conducting the Retained Business or the Shared Business in the Ordinary Course of Business shall be permissible so long as it does not violate any other provision of this Section 7.02, or induce, influence or encourage any customer or supplier of Buyer or any of its Affiliates or any independent contractor providing services to Buyer or any of its Affiliates to terminate or adversely modify diminish its relationship with Buyer or any of its Affiliates or (C) seek to persuade any customer or supplier of Buyer or any of its Affiliates to conduct with anyone else any business or activity that such customer or supplier conducts, conducted or could conduct with Buyer or any of its Affiliates or otherwise provide services or products to such customers or suppliers. Notwithstanding the employment foregoing, Seller may hire and solicit for hiring any employee of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted Buyer who was terminated by a Restricted Entity not specifically directed at Restricted Customers; orBuyer.
(ii) SolicitDuring the Restricted Period and unless otherwise waived in writing by Seller, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall Buyer will not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, and will not directly or indirectly assist any other Person to, (A) solicit, hire or attempt to solicit or hire engage in any capacity any employee of Seller or any of its Affiliates (or any Person who is not a Continuing Employee for was an employee of Seller or any of its Affiliates within twelve (12) months preceding the date of such solicitation, hiring, or engagement) or solicit or seek to persuade any employee of Seller or any of its Affiliates to discontinue employment with Seller or in any other capacity (including as an independent contractor or consultant)of its Affiliates; provided, howeverthat Buyer will not be restricted from making any general solicitation for employment (in whatever form or medium) that is not specifically directed at the employees of Seller; and provided further, that the foregoing shall Buyer will not apply be restricted from hiring any such employee who (1) responds to any such general solicitation or (i2) individual whose employment contacts Buyer on that employee’s own initiative, (B) call on or service was terminated by solicit any customer or supplier of Seller or any of its Affiliates or any independent contractor providing services to Seller or any of its Affiliates, (ii) publishing provided that solicitation of and contact with a Person for the purposes of conducting the Business or posting of open positions the Shared Business in the course Ordinary Course of normal hiring practices which are Business shall be permissible so long as it does not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of violate any other provision of this Agreement. The existence Section 7.02, or induce, influence or encourage any customer or supplier of Seller or any claim of its Affiliates or cause any independent contractor providing services to Seller or any of action against one party by the other party, whether predicated on the breach its Affiliates to terminate or diminish its relationship with Seller or any of this Agreement its Affiliates or otherwise, shall not constitute a defense (C) except with respect to the enforcement Business or the Shared Business, seek to persuade any customer or supplier of Seller or any of its Affiliates to conduct with anyone else any business or activity that such customer or supplier conducts, conducted or could conduct with Seller or any of its Affiliates or otherwise provide services or products to such customers or suppliers. Notwithstanding the foregoing, Buyer may offer employment to and employ any or all of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel Hired Employees, and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable Buyer may hire and proper in scope, duration, geographical area and in all other respects. If solicit for hiring any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction employee of Seller who was terminated by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedSeller.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Non-Solicitation. (a) During the period beginning on the Closing Date and ending on the 18-month anniversary of the Closing DateEmployee acknowledges that, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are performing Services (as used throughout this VG Energy, Inc. IP Agreement as defined in the Employment Agreement) for or on behalf of VGE, having access to VGE's technology, reports, processes, materials, knowledge and know-how, data, facilities, books and records, Employee may from time to time receive Confidential Information (as defined in Paragraph 2, below) of or with respect to VGE and hereby stipulates and agrees that such Confidential Information is a part of and essential to the operations and goodwill of VGE. In connection and in furtherance of the foregoing, Employee may not specifically sent to(whether directly or indirectly; as the principal or on such person's own account; or solely or jointly with others as an Employee, agent, independent contractor, Employee, general or limited partner, member, stockholder or holder of equity securities of any other person, other than through ownership of less than one percent of a class of publicly-traded securities of a company) engage in any of the conduct or activity described below in this Paragraph 1.
(a) Employee may not, so long as Employee is a Employee of VGE pursuant to the Employment Agreement and until the third anniversary of the effective date of termination of the Employment Agreement for any reason, solicit, induce or influence any person that at such time is (or, during the six (6) month period ending on the effective date of termination of the Employment Agreement, was) a vendor, licensor, licensee, distributor, customer, company, Employee, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor of VGE, excluding the University, to terminate any contract or consultantagreement with VGE or leave the service of VGE. Employee acknowledges that the restrictions in this subparagraph (a) if no Restricted Entity had previously attempted of this Paragraph 1 will not impair Employee's ability to solicit carry on Employee's profession or hire such individualearn a living.
(b) Purchaser agrees that from the date hereof Employee may not, so long as Employee is a Employee of VGE and until the 18-month third anniversary of the Closing Date it shall noteffective date of termination of the Employment Agreement for any reason, and shall cause its Affiliates without the express prior written consent of VGE, participate either directly or indirectly in any discussion or negotiation with any person that at such time is (including or, during the Companies six month period ending on the effective date of termination of the Employment Agreement, was) a vendor, licensor, licensee, distributor, customer, company, Employee, or independent contractor of VGE the purpose of which discussion or negotiation would be materially adverse to the interests of VGE and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing relationship existing between VGE and such person. Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, acknowledges that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth restrictions in this Section 7.7 are an essential element subparagraph (b) of this Agreement and that, but for the agreement of each party Paragraph 1 will not impair Employee's ability to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance carry on Employee's profession or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute earn a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedliving.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Non-Solicitation. (a) During Until one year after the period beginning on date of termination of each Principal's employment with the Closing Date and ending on the 18-month anniversary of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectivelyLLC, the “Restricted Entities”) Management Company and each of their Subsidiaries, that Principal shall not, directly or indirectly, for whatever reason, whether for his or her own account or the account of any Person, without the prior written consent of the LLC and the Management Company:
(i) Inducea. solicit, solicit either directly or encourageindirectly, or otherwise induce or attempt to induceinduce any WTC Client to use the family office or business management services of any Person other than Holdings, solicit or encourageWTC, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies WTC's Affiliates or the Transferred Subsidiaries for such services, in each case other than ▇▇▇▇▇ ▇▇▇▇ Entities and will otherwise treat the list of Clients as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customersif it were Confidential Information; or
(ii) Solicit, hire or attempt to b. solicit or hire any Continuing Employee for Person who is, or was during the 12 months prior to the time of that Principal's termination of employment, employed by or associated with a ▇▇▇▇▇ ▇▇▇▇ Entity, Holdings, WTC or a WTC Affiliate as an executive, officer, employee, manager, salesman, consultant, independent contractor, representative or other agent or induce that Person to terminate his or her employment relationship with any ▇▇▇▇▇ ▇▇▇▇ Entity or in to enter into employment with any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing Person. The restrictions set forth in Section 11.2 and this Section 11.3 shall not apply to any (1) individual to a Principal whose employment with the LLC and each of its Subsidiaries or service was by the Management Company is terminated by the Companies LLC and such Subsidiaries or by the Transferred SubsidiariesManagement Company without Cause or by that Principal for Good Reason, (2) publishing to a Principal if a Change of Control occurs and Holdings and its Permitted Transferees or posting its successor, as the case may be, purchase all of open positions in that Principal's LLC Interests (including his or her Derivative Share and the course LLC Interests held by his or her Permitted Transferees) pursuant to the terms of normal hiring practices which are not specifically sent to, Section 7.5(a) or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made if the LLC is liquidated and its business is not continued by third-party search firms that have not been directed by Seller a successor entity. Nothing in Section 11.3(a) or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall notpermit a Principal to use Confidential Information made available by Holdings, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller WTC or any of its WTC's Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement ▇▇▇▇▇ ▇▇▇▇ Entities (including, without limitation, WTC Client lists) for any purpose other than the pursuit of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope▇▇▇▇▇ ▇▇▇▇ Entities business objectives or those of Holdings, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void WTC or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedWTC's Affiliates.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Wilmington Trust Corp)
Non-Solicitation. (a) During For a period of three (3) years from and after the period beginning on Closing Date, Sellers shall not, and shall cause their Subsidiaries and Affiliates not to, without the express written consent of Buyer, directly or indirectly, (x) solicit any Designated Employees to leave the employment of Buyer or any of its Affiliates for employment with any Seller or any of Sellers' Subsidiaries or Affiliates, or violate the terms of their employment contracts, or any employment arrangements, with Buyer or any such Affiliate, or (y) within six (6) months of the later of the Closing Date and ending the date on the 18-month anniversary of the Closing Datewhich a Business Employee is no longer employed by Buyer or its Affiliates, and except as otherwise required hire, employ or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt extend an offer to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for hire such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted EntityBusiness Employee; provided, however, that the foregoing nothing in this Section 7.7(a) shall not apply to restrict or preclude Sellers or any (1) individual whose employment of their Subsidiaries or service was terminated Affiliates from making generalized searches for employees by the Companies or the Transferred Subsidiaries, (2) publishing or posting use of open positions advertisements in the course of normal hiring practices which are not specifically sent to, media (including trade media) or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party engaging search firms that have are not been directed instructed to solicit the employees employed by Seller or the Analytical Technologies Business to engage in searches. Without limiting the foregoing, Sellers and their Representatives shall not provide Lumira Capital and its Affiliates with any information to specifically solicit such individuals or hiring as a result of such solicitationspermit them, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee otherwise encourage or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted assist them , to solicit any Affected Employees to leave the employment of Buyer or hire such individualany of its Affiliates.
(b) Purchaser agrees that For a period of three (3) years from the date hereof until the 18-month anniversary of and after the Closing Date it Date, Buyer shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) Subsidiaries not to, without the express written consent of Parent, directly or indirectly, solicitsolicit any management level employees of Parent or any Retained Subsidiary who are so employed as of the Closing Date, hire in each case, to (x) leave the employment of Parent or attempt such Retained Subsidiary, or (y) violate the terms of their employment contracts, or any employment arrangements, with Parent or such Retained Subsidiary, in all such cases in order to solicit or hire any become an employee of Seller Buyer or any its Subsidiaries for purposes of its Affiliates who is not a Continuing Employee for employment or being employed in any other capacity (including as an independent contractor or consultant)the Analytical Technologies Business; provided, however, that nothing in this Section 7.7(b) shall restrict or preclude Buyer or any of its Subsidiaries from (A) making generalized searches for and hiring employees by the foregoing shall use of advertisements in the media (including trade media) or by engaging search firms that are not apply instructed to any (i) individual whose employment or service was terminated by Seller or its Affiliatessolicit such employees to engage in searches, (iiB) publishing soliciting, hiring or posting of open positions in the course of normal hiring practices which are extending an offer to hire, directly or indirectly, any Designated Employee who did not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such postingbecome an Affected Employee at Closing, or (iiiC) solicitations made soliciting, hiring or extending an offer to hire, directly or indirectly, any employee of Parent or any Retained Subsidiary to provide services to businesses of Buyer or any of its Subsidiaries or Affiliates other than the Analytical Technologies Business. Notwithstanding the foregoing, after the Closing, upon Buyer's request, Sellers shall cooperate with Buyer and its Subsidiaries in good faith to facilitate the employment by third-party search firms that have not been directed by Purchaser Buyer or one of its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance Subsidiaries of any other provision of this Agreement. The existence of person who should have been a Direct Employee and who did not become an Affected Employee at Closing for any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedreason whatsoever.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Non-Solicitation. (a) During the period beginning on the Closing Date and ending on the 18-month anniversary of the Closing Date, and except Except as otherwise required or permitted by any Ancillary Agreementexpressly provided in this Section 5.4, Seller the Company and its Affiliates (collectively, the “Restricted Entities”) Subsidiaries shall not, directly or indirectly, through any officer, director, employee, representative, (including any financial or other advisor) or agent of the Company or any of its Subsidiaries (collectively, the “Representatives”):
(i) solicit, initiate, encourage or otherwise knowingly facilitate (including by way of furnishing or providing copies of, access to, or disclosure of, any confidential information, properties, facilities, books or records of the Company or any of its Subsidiaries) any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal;
(ii) enter into, engage in, continue or otherwise participate in any discussions or negotiations with any Person (other than the Purchaser and its Subsidiaries or affiliates) in respect of any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal, provided that the Company may advise any Person of the restrictions applicable to the Company and its Subsidiaries set forth in this Agreement;
(iii) make a Company Change in Recommendation;
(iv) accept, approve, endorse or recommend, or publicly propose to accept, approve, endorse or recommend, or take no position or remain neutral with respect to, any publicly announced Acquisition Proposal (it being understood that publicly taking no position or a neutral position with respect to an Acquisition Proposal for a period of no more than five Business Days following the public announcement of such Acquisition Proposal will not be considered to be in violation of this Section 5.4(a)(iv); provided that the Company Board has rejected such Acquisition Proposal and affirmed the Company Board Recommendation by press release before the end of such five Business Day period (or in the event that the Company Meeting is scheduled to occur within such five Business Day period, prior to the third Business Day prior to the date of the Company Meeting); provided, further, that the Company shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by the Purchaser and its counsel); or
(v) accept or enter into, or publicly propose to accept or enter into, any letter of intent, agreement in principle, agreement, arrangement or understanding relating to any Acquisition Proposal.
(b) The Company shall, and shall cause its Subsidiaries and Representatives to immediately cease any existing solicitation, encouragement, discussions, negotiations or other activities commenced prior to the date of this Agreement with any Person (other than the Purchaser and its Subsidiaries or affiliates) conducted by the Company or any of its Subsidiaries or Representatives with respect to any inquiry, proposal or offer that constitutes, or may reasonably be expected to constitute or lead to, an Acquisition Proposal, and, in connection therewith, the Company shall:
(i) Induce, solicit immediately discontinue access to and disclosure of its and its Subsidiaries’ confidential information (and not allow access to or encouragedisclosure of any such confidential information, or attempt any data room, virtual or otherwise); and
(ii) as soon as possible request (and in any case within two Business Days), and exercise all rights it has (or cause its Subsidiaries to induce, solicit exercise any rights that they have) to require the return or encourage, destruction of all confidential information (including derivative information) regarding the Company and its Subsidiaries previously provided to any Restricted Customer Person (other than the Purchaser) in connection with a possible Acquisition Proposal to (1) use a Restricted Entity to provide any services which are offered by the Companies extent such information has not already been returned or destroyed and the Transferred Company or its applicable Subsidiary has the right to request such return or destruction pursuant to a confidentiality agreement that is in force and effect, and shall use its reasonable best efforts to ensure that such requests are fully complied with to the extent the Company is entitled.
(c) The Company represents and warrants that neither the Company nor any of its Subsidiaries has waived any standstill, confidentiality, non-disclosure, business purpose, use or similar agreement or restriction to which the Company or any of its Subsidiaries is a Party as of the Closing Date date hereof. Subject to Section 5.4(d), the Company covenants and agrees that:
(i) the “Restricted Services”Company shall take all necessary action to enforce each standstill, confidentiality, non-disclosure, business purpose, use or similar agreement or restriction to which the Company or any of its Subsidiaries is a party; and
(ii) neither the Company nor any of its Subsidiaries nor any of their respective Representatives have released or (2) reducewill, terminate or adversely modify without the employment prior written consent of the Companies Purchaser, release any Person from, or waive, amend, suspend or otherwise modify such Person’s obligations respecting the Transferred Subsidiaries for such servicesCompany, or any of its Subsidiaries, under any standstill, confidentiality, non-disclosure, business purpose, use or similar agreement or restriction to which the Company or any of its Subsidiary is a party (it being acknowledged by the Purchaser and the Parent that the automatic termination or automatic release, in each case other than pursuant to the terms thereof, of any standstill restrictions of any such agreements as a consequence result of the entering into and announcement of this Agreement shall not be a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customersviolation of this Section 5.4(c)).
(d) If the Company, or any of its Subsidiaries or any of their respective Representatives receives:
(i) any inquiry, proposal or offer made after the date of this Agreement that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal; or
(ii) Solicitany request for copies of, hire access to, or attempt disclosure of, confidential information relating to solicit the Company or hire any Continuing Employee for employment Subsidiary in connection with any proposal that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal, including information, access or disclosure relating to the properties, facilities, books or records of the Company or any Subsidiary, in each case made after the date of this Agreement; then, the Company shall promptly notify the Purchaser orally, and then in writing within 24 hours, of such Acquisition Proposal, inquiry, proposal, offer or request (irrespective of whether the Acquisition Proposal, inquiry, proposal, offer or request is conditional upon the Company not disclosing the receipt, or contents of the Acquisition Proposal, inquiry, proposal or request to any person), including the identity of the Person making such Acquisition Proposal, inquiry, proposal, offer or request and the material terms and conditions thereof and provide copies of all written documents, correspondence or other capacity material received in respect of, from or on behalf of any such Person. The Company shall keep the Purchaser fully informed on a current basis of the status of material developments with respect to such Acquisition Proposal, inquiry, proposal, offer or request, including any material changes, modifications or other amendments thereto.
(e) Nothing contained in this Section 5.4 shall prohibit the Company Board from making disclosure to Company Shareholders as required by applicable Law, including as complying with Section 2.17 of National Instrument 62-104—Takeover Bids and Issuer Bids and similar provisions under Canadian Securities Laws relating to the provision of a directors’ circular in respect of an independent contractor or consultant) with a Restricted Entity; Acquisition Proposal and Rule 14d 9 under the Exchange Act, provided, however, neither the Company nor the Company Board shall be permitted to recommend that the foregoing shall not apply to Company Shareholders tender any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions securities in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by thirdconnection with any take-party search firms over bid that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as is an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individualAcquisition Proposal.
(bf) Purchaser agrees that from Notwithstanding anything to the date hereof until contrary in this Agreement, but subject to Section 5.4(g), the 18-month anniversary Unconflicted Company Board may, at any time prior to obtaining the Company Shareholder Approval, make a Company Change in Recommendation in response to an Intervening Event if the Unconflicted Company Board (based upon, amongst other things, the recommendation of the Closing Date Special Committee) has determined in good faith, after consultation with the Company’s external legal and financial advisors, that the failure by the Unconflicted Company Board to make such a Company Change in Recommendation in response to such Intervening Event would be inconsistent with its fiduciary duties.
(g) Upon becoming aware of an Intervening Event, the Company shall promptly provide written notice to the Purchaser describing the Intervening Event in reasonable detail (the “Intervening Event Notice”), and shall at all times keep the Purchaser reasonably informed of developments with respect to such Intervening Event (whether or not such Intervening Event results in a Company Change in Recommendation). Prior to the Unconflicted Company Board making a Company Change in Recommendation in response to an Intervening Event, (A) the Company shall provide written notice to the Purchaser that the Unconflicted Company Board intends to make a Company Change in Recommendation and specifying, in reasonable detail, the underlying facts giving rise to, and the reasons for making, a Company Change in Recommendation, including the reasons for which the Unconflicted Company Board believes that failure to make a Company Change in Recommendation in response to the Intervening Event would be inconsistent with its fiduciary duties, (B) during the period ending on the earlier of five Business Days following receipt by the Purchaser of the Intervening Event Notice and the third Business Day prior to the Company Meeting (the “Intervening Event Period”), the Purchaser shall have the opportunity (but not the obligation) to request such additional information about the Intervening Event as it may reasonably require (which information shall be provided promptly to the Purchaser, to the extent it is available to the Company), and (C) at the end of such Intervening Event Period, the Unconflicted Company Board (based upon, amongst other things, the recommendation of the Special Committee) shall have determined in good faith, after consultation with the Company’s external legal and financial advisors that the failure by the Unconflicted Company Board to make a Company Change in Recommendation in response to such Intervening Event would continue to be inconsistent with its fiduciary duties.
(h) If the Company delivers an Intervening Event Notice to the Purchaser after a date that is less than five Business Days prior to the Company Meeting, the Company shall be entitled to, and the Company shall upon request by the Purchaser, postpone the Company Meeting to a date that is not more than 15 Business Days after the scheduled date of the Company Meeting (and, in any event, prior to the Outside Date).
(i) For greater certainty, notwithstanding any Company Change in Recommendation (but subject to Section 5.4(h)), unless this Agreement has been terminated in accordance with its terms, the Company shall call the Company Meeting to occur and the Arrangement Resolution to be put to the Company Shareholders thereat for consideration in accordance with this Agreement, and the Company shall not, and shall cause its Affiliates (including except as required by applicable Law, submit to a vote of the Companies and Company Shareholders any Acquisition Proposal other than the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt Arrangement Resolution prior to solicit or hire any employee the termination of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitationsthis Agreement.
(cj) The parties acknowledge Company acknowledges and agrees that any Company Change in Recommendation may only be made pursuant to Section 5.4(f) and no other provisions of this Agreement.
(k) Without limiting the covenants generality of the foregoing, the Company shall advise its Subsidiaries and its Representatives of the prohibitions set out in this Section 5.4 and any violation of the restrictions set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party 5.4 by the other partyCompany, whether predicated on the breach of this Agreement its Subsidiaries or otherwise, Representatives shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found be deemed to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 5.4 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertakingCompany.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Non-Solicitation. (a) During For a period of three (3) years following the First Closing and, provided that the transactions contemplated by the Second Closing take place, for a period beginning on of three (3) years following the Second Closing Date and ending on the 18-month anniversary of the Closing Date(such period, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectivelyapplicable, the “Restricted EntitiesPeriod”) ), none of Seller, Parent nor any of their respective Affiliates shall not, directly or indirectly:
(i) Induce, solicit or encourageas an entity, or attempt to induceon behalf of, solicit through or encourage, in conjunction with any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment Person or in any other capacity whatsoever, contact or solicit, either for itself or on behalf of any other Person, any Person that is Known to Seller to be a customer or client of Purchaser or any Person that is Known to Seller to be a former customer or client of Seller in order to (including as an independent contractor a) divert or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply influence or attempt to divert or influence any (1) individual whose employment business of Purchaser to Seller or service was terminated by the Companies otherwise from Purchaser or the Transferred SubsidiariesBusiness as operated by Purchaser after the First Closing or the Second Closing, (2) publishing or posting of open positions in as the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitationscase may be, or (4b) individual who approaches a otherwise interfere in any fashion with Purchaser’s operation of the Business. Furthermore, during the Restricted Entity seeking to be hired as an employee Period, none of Seller, Parent nor any of their respective Affiliates shall directly or indirectly, either for itself or on behalf of any other Person or in another any other capacity whatsoever, solicit for hire, hire, retain, employ, contract for services in any capacity or otherwise interfere with the relationship of Purchaser with (including as an independent contractor a) any person Known by Seller to have been employed by or consultantotherwise engaged to perform services for Purchaser prior to the date of this Agreement or at any time during the Restricted Period, or (b) if no Restricted Entity had previously attempted any Key Employee, Employee or any person who was employed in the Business prior to solicit or hire such individualthe date of this Agreement. For the purposes of this Section 10.02(a), the phrase “Known” shall not include the knowledge of the Key Employees.
(b) Purchaser Seller hereby acknowledges and agrees that from the date hereof until the 18-month anniversary restrictive period of time and scope of restricted activity specified in Section 10.02 are reasonable and necessary in view of the transactions contemplated by this Agreement and the nature of the business in which Seller was engaged or is engaged as of the First Closing Date it shall notor the Second Closing, as the case may be, and in which Purchaser is, or shall cause its Affiliates (including the Companies be, engaged. Seller further acknowledges and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, agrees that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants restrictions set forth in this Section 7.7 10.02 are an essential element of reasonable and necessary to protect Purchaser’s investment under this Agreement and that, but for to safeguard the agreement of each party to comply value and goodwill associated with these covenants, the other party Assets and the Business. Seller acknowledges and agrees that Purchaser would not have entered into this Agreement. The parties acknowledge that Agreement but for Seller’s agreement and obligation pursuant to this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance 10.02. If the scope of any other provision stated restriction is too broad to permit enforcement of this Agreement. The existence of any claim or cause of action against one party by such restriction(s) to its full extent, then the other party, whether predicated on the breach of this Agreement or otherwise, parties agree that such restriction shall not constitute a defense be enforced and/or modified to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest maximum extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedlaw.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Non-Solicitation. (a) During In consideration of the period beginning on benefits of this Agreement to Inland Group, IREIC and the Manager Shareholders and in order to induce REIT to enter into this Agreement, each of Inland Group, IREIC and each Manager Shareholder hereby covenants and agrees that, from and after the Closing Date and ending on until the 18-month fifth (5th) anniversary of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicitas an officer, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment director, employee, partner, stockholder, member, proprietor, consultant, joint venturer, investor or in any other capacity capacity, hire or solicit to perform services (as an employee, consultant or otherwise) or take any actions which are intended to persuade any termination of association of any Service Employee (including as an independent contractor employees of any respective Affiliates of the Service Providers performing services for or consultant)on behalf of any Service Provider) with any of REIT or the Surviving Corporations; provided, however, that (i) general solicitations of employment published in a journal, newspaper or other publication of general circulation or listed on any internet job site and not specifically directed towards such employees shall not be deemed to constitute solicitation for purposes of this Section 6.15; (ii) any hiring of any Service Employee or any other person employed by REIT by Inland Group, IREIC or any Manager Shareholder will not be prohibited where such hiring is not the foregoing result of a solicitation by the hiring party; and (iii) this covenant shall not apply to the persons listed on Schedule 6.15.
(b) In consideration of the benefits of this Agreement to REIT and in order to induce Inland Group, IREIC and the Manager Shareholders to enter into this Agreement, REIT hereby covenants and agrees that, from and after the Closing Date and until the fifth (5th) anniversary of the Closing Date, it shall not, and shall cause its Affiliates not to, directly or indirectly, as an officer, director, employee, partner, stockholder, member, proprietor, consultant, joint venturer, investor or in any other capacity, hire or solicit to perform services (as an employee, consultant or otherwise) or take any actions which are intended to persuade any termination of association of any employee of Inland Group or IREIC (including employees of any respective Affiliates of Inland Group or IREIC performing services for or on behalf of any Service Provider) with any of Inland Group or IREIC; provided, however, that (i) individual whose general solicitations of employment published in a journal, newspaper or service was terminated by Seller other publication of general circulation or its Affiliates, listed on any internet job site and not specifically directed towards such employees shall not be deemed to constitute solicitation for purposes of this Section 6.15; (ii) publishing any hiring of any employee of Inland Group or posting of open positions in IREIC by REIT will not be prohibited where such hiring is not the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or a solicitation by the hiring party; and (iii) solicitations made by third-party search firms that have this covenant shall not been directed by Purchaser or its Affiliates (including apply to the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitationspersons listed on Schedule 6.15.
(c) The parties acknowledge Each of Inland Group, IREIC and each Manager Shareholder specifically acknowledges and agrees that the covenants time and activity restrictions set forth in Section 6.15(a) are reasonable and properly required for the protection of REIT and the businesses being acquired, and REIT specifically acknowledges and agrees that the time and activity restrictions set forth in Section 6.15(b) are reasonable and properly required for the protection of Inland Group and IREIC. However, each of Inland Group, IREIC, each Manager Shareholder and REIT further agrees that if any of the provisions of this Section 7.7 are an essential element 6.15 is found by any court of this Agreement competent jurisdiction (or legally empowered agency) to be in violation of applicable Law or unenforceable for any reason whatsoever, then it is the intention of Inland Group, IREIC, each Manager Shareholder and that, but for REIT that such provision or provisions be deemed to be automatically amended to the agreement of each party extent necessary to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel applicable Law and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respectspermit enforcement. If any such covenant is found of the provisions of this Section 6.15 shall be deemed by any court of competent jurisdiction (or legally empowered agency) to be wholly or partially invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability binding effect of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision 6.15. REIT and Inland Group, IREIC and each Manager Shareholder agree that a monetary remedy for breach under this Section 6.15 shall be reformed rather than voided inadequate, and the court or Governmental Authority making such determination shall have the power will be impracticable and extremely difficult to reduce the scopeprove, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with and further agree (i) that a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly6.15(a) will cause REIT irreparable harm, and that, in addition to any other right rights or remedy remedies available to which such party may be entitledREIT, at law or in equity or under this Agreement, such party shall be REIT is entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary temporary and permanent injunctive relief to prevent breaches or threatened breaches without the necessity of this Section 7.7proving actual damages, without posting any with a bond or other undertaking.
form of security not being required and specifically waived hereby and (eii) For the avoidance that a breach of doubtSection 6.15(b) will cause Inland Group or IREIC, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply as applicable, irreparable harm, and that, in addition to any Person that other rights or remedies available to Inland Group or IREIC, as applicable, Inland Group or IREIC, as applicable, is an Affiliate entitled to temporary and permanent injunctive relief without the necessity of proving actual damages, with a party to this Agreement if such Person ceases to be an Affiliate bond or other form of such partysecurity not being required and specifically waived hereby.
Appears in 1 contract
Sources: Merger Agreement (Inland Retail Real Estate Trust Inc)
Non-Solicitation. (a) During From the period beginning on date of this Agreement through the Closing Date and ending on the 18-month second anniversary of the Closing Date, the Sellers’ Representative agrees that it will not, and except as otherwise required or permitted by any Ancillary Agreement, Seller and will cause its Affiliates (collectivelynot to, without the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as prior written consent of the Closing Date (the “Restricted Services”) Buyer, hire, offer to hire or (2) reduce, terminate or adversely modify solicit the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates individuals set forth on Schedule I who are identified as holding options on such schedule (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant“Restricted Employee”); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense notwithstanding anything to the enforcement of the covenants contrary contained in this Section 7.7. The parties 8.16, the Sellers’ Representative may (without being deemed to have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in breached any provision of this Section 7.7 are reasonable 8.16), and proper in scopemay permit their Affiliates to, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void (a) place public advertisements or unenforceable in any situation in any jurisdiction by a final determination of a court or conduct any other Governmental Authority form of competent jurisdictiongeneral solicitation which is not specifically targeted at any Restricted Employee (provided that Seller may only hire a Restricted Employee Table of Contents who responds to such advertisements or solicitation), (b) engage any recruiting firm or similar organization to identify or solicit individuals for employment, as long as such recruiting firm or organization is not instructed by the Sellers’ Representative to target any Restricted Employee, or (c) other than pursuant to clause (i), hire any Restricted Employee at any time more than 90 days after the Company Group terminates the employment of such Restricted Employee.
(b) From the date of this Agreement through the second anniversary of the Closing Date, each Seller agrees that such Seller will not, and Purchaser agree that: will cause its respective Affiliates not to, knowingly, directly or indirectly, (i) such determination shall not affect solicit, induce, or attempt to solicit or induce, any franchisees, developers, suppliers or landlords of the validity Company Group (each a “Supplier”) to terminate his, her or enforceability its respective relationship with the Company Group, as the case may be, for the purpose of (1) associating with or becoming a franchisee, developer, supplier or landlord to either of the offending term Sellers or provision in any other situation their respective Affiliates, or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scopeotherwise knowingly solicit, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrasesinduce, or attempt to replace solicit or induce, any invalid such Supplier to terminate his, her or enforceable term or provision its respective relationship with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to Company Group for any other right purpose or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertakingfor no purpose whatsoever.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Non-Solicitation. (a) During the period beginning Commencing on the Closing Date date hereof and ending on until the 18-month three (3)1 year anniversary of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as ,[ each of the Closing Date (Beneficial Owner and] the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser Stockholder agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, without prior written consent of Parent, directly or indirectly, (i) solicit, hire induce or attempt to solicit or hire encourage any employee of Seller the employees of the Company, the Surviving Entity or any of its Affiliates who is not their respective Subsidiaries [listed in Exhibit B]2 (each, a Continuing Employee for “Restricted Person”) to leave his or her employment or in (ii) hire, employ or otherwise similarly engage any other capacity (including as an independent contractor or consultant)such Restricted Person; provided, however, that the foregoing clause (i) shall not apply to any Restricted Person who responds to general advertisement or a general solicitation not specifically directed at such Restricted Person and the foregoing clauses (i) individual whose employment or service was terminated by Seller or its Affiliates, and (ii) publishing shall not apply to any Restricted Person whose employment is terminated by the Company or posting any of open positions its Subsidiaries; provided, further, that if the Stockholder is a venture capital or other investment fund, the term “Affiliates” as used in this Section 8 shall not include any reference to any portfolio company of the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller Stockholder or its Affiliates so long as the Stockholder does not direct such portfolio company to engage in such solicitation.
(b) Each of Parent[, the Beneficial Owner] and the Stockholder agrees that the duration and scope of the non-solicitation provision set forth in this Section 8 are reasonable and necessary to protect the legitimate interests of Parent. In the event that any court of competent jurisdiction determines that the duration or hiring as a result of such postingthe restrictions, or (iii) solicitations made by third-party search firms both, are unreasonable and that have not been directed by Purchaser or its Affiliates (including such provision is to that extent unenforceable, Parent[, the Companies Beneficial Owner] and the Transferred Subsidiaries) Stockholder agree that the provision shall remain in full force and effect to specifically solicit such individuals the maximum extent for the greatest time period and scope that would not render it unenforceable. Parent[, the Beneficial Owner] and the Stockholder intend that this non-solicitation provision shall be deemed to be a series of separate covenants, one for each and every Restricted Person. [Each of the Beneficial Owner and] [T][t]he Stockholder agrees that damages are an inadequate remedy for any breach of this provision and that Parent shall, whether or hiring as a result not it is pursuing any potential remedies at Law, be entitled to equitable relief in the form of such solicitationspreliminary and permanent injunctions without bond or other security upon any actual or threatened breach of this non-solicitation provision.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement [Each of the covenants contained Beneficial Owner and] [T][t]he Stockholder acknowledges that his or her ownership of Covered Shares represents a substantial interest in this Section 7.7. The parties have independently consulted with their respective counsel the Company and after such consultation agree that the covenants Stockholder intends 1 NTD: To be set forth at two years solely in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found the Support Agreement to be invalid, void or unenforceable in any situation in any jurisdiction executed by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedAccel.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (SoFi Technologies, Inc.)
Non-Solicitation. (ai) During Seller agrees, from the period beginning on the Closing Date and ending on the 18-month anniversary time of the Closing Dateuntil the expiration of the Restricted Period, and except as otherwise required not to directly or permitted by indirectly solicit, induce or encourage any Ancillary Agreement, Seller and its Affiliates executive or employee or other personnel (collectivelyincluding contractors) of the Business that accepted employment with the Buyer (such employees, the “Restricted EntitiesAccepted Offered Employees”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) to leave, alter or (2) reducecease his or its relationship with Buyer or any of its Affiliates, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entityreason whatsoever; provided, however, that the foregoing shall not apply to any (1) individual whose employment Seller may solicit, hire or service was terminated by the Companies assist or the Transferred Subsidiaries, (2) publishing or posting of open positions participate in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees solicitation or hiring as a result of (i) any such postingpersonnel via form letter, blanket mailing or published advertisement or (3ii) solicitations made by third-party search firms that have any former executive or employee or other personnel (including contractors) of the Business who has not been directed employed or engaged by Seller Buyer or its Affiliates for the six (6)-month period prior to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individualhiring.
(bii) Purchaser Other than with respect to the Accepted Offered Employees, Buyer agrees that from the date hereof time of the Closing until the 18-month anniversary expiration of the Restricted Period, not to directly or indirectly solicit, induce or encourage any executive or employee or other personnel (including contractors) of the Seller Excluded Business as of the Closing Date it shall notas of the date of the Combination, and shall cause to leave, alter or cease his or its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of relationship with Seller or any of its Affiliates who is not a Continuing Employee Affiliates, for employment or in any other capacity (including as an independent contractor or consultant)reason whatsoever; provided, however, that Buyer may solicit, hire or assist or participate in the foregoing shall not apply to any solicitation or hiring of (i) individual whose employment any such personnel via form letter, blanket mailing or service was terminated published advertisement or (ii) any former executive or employee or other personnel (including contractors) of the Seller Excluded Business who has not been employed or engaged by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party six (6)-month period prior to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedhiring.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Non-Solicitation. (a) During The GAME Parties on behalf of themselves and their respective Affiliates, agree that, during the period beginning on Restricted Period, without the Closing Date and ending on the 18-month anniversary prior written consent of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectivelyCompany, the “Restricted Entities”) GAME Parties and each of their respective Affiliates shall not, directly or indirectly:
(i) Inducecontact, approach or solicit for the purpose of offering employment to or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to hiring (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including whether as an employee, consultant, agent, independent contractor or otherwise), or actually hire, any employee, consultant, agent, independent contractor or otherwise who is currently employed or engaged by, or was employed or engaged within the last twelve month period by any GAME Party, the Company or any Affiliate thereof with respect to the Business as presently conducted, presently planned to be conducted, or has been conducted within the past twelve (12) with a Restricted Entitymonths by any GAME Party, the Company or any Affiliate thereof; provided, however, that the foregoing GAME Parties and their respective Affiliates shall not apply to any (1) individual whose be prohibited from general solicitations for employment or service was terminated by not directly targeting the Companies Company, its Affiliates or the Transferred Subsidiariesforegoing’s employees; and/or
(ii) (A) solicit, attempt to induce or perform services for any customer, client, partner, agent or other business relation of either the GAME Parties, the Company or any Affiliate thereof with respect to the Business as presently conducted, presently planned to be conducted, or has been conducted within the past twelve (212) publishing months by either the GAME Parties (or posting any Person who was a customer, client, partner, agent or other business relation of open positions either the GAME Parties, the Company or any Affiliate thereof with respect to the Business in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, three (3) solicitations made by third-party search firms that have not been directed by Seller year period prior to the date hereof) or its Affiliates any Person with whom the GAME Parties, the Company or any Affiliate thereof, was involved in making a proposal to specifically solicit such individuals provide products or hiring as a result of such solicitations, or services during the three (43) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from year period immediately preceding the date hereof until (collectively, “Customers”), into any business relationship relating to the 18-month anniversary Business or which is reasonably likely to harm either the Company or any of the Closing Date it shall nottheir Affiliates, and shall cause its Affiliates (including the Companies and the Transferred SubsidiariesB) not to, directly or indirectly, solicit, hire encourage, aid, influence or attempt to solicit influence any Customer to terminate, cease doing business with or hire any employee of Seller adversely amend or modify such Customer’s relationship with the Company or any of its Affiliates who is not a Continuing Employee for employment or in (C) disparage either the Company or any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or of its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent toofficers, or do not specifically targetdirectors, principals, managers, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitationsagents.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Non-Solicitation. (a) During the period beginning on the Closing Date and ending on the 18-month anniversary term of the Closing Date, Secondment and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates for a period of twelve (collectively, 12) months thereafter the “Restricted Entities”) shall not, directly or indirectly:
Executive (i) Inducewill refrain, solicit either alone or encouragein association with others, from directly or attempt indirectly employing, attempting to induceemploy, solicit recruiting or encourage, otherwise soliciting any Restricted Customer Person (as defined herein), inducing or influencing any Restricted Person to terminate their relationship with TechTarget or any of its subsidiaries (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as other than terminations of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions subordinate employees undertaken in the course of normal hiring practices which are not specifically sent tothe Secondment) or otherwise interfering in any material respect with said relationship; and (ii) will refrain, either alone or do not specifically targetin association with others, Continuing Employees or hiring from (x) soliciting any Restricted Business Partner (as a result of such posting, (3defined herein) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4y) individual who approaches a encouraging any Restricted Entity seeking Business Partner, in the case of each of clauses (x) and (y), to be hired as an employee terminate or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause otherwise modify adversely its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of Seller business relationship with TechTarget or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, subsidiaries. The Executive understands that the foregoing shall not apply to any (i) individual whose employment or service was terminated by Seller or its Affiliates, (ii) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants restrictions set forth in this Section 7.7 6 are an essential element of intended to protect TechTarget’s interest in its Confidential Information and established employee, customer and supplier relationships and goodwill, and agrees that such restrictions are reasonable and appropriate for this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreementpurpose. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision For purposes of this Agreement. The existence , the term “Restricted Person” means each and every person employed by TechTarget or any of any claim or cause of action against one party by its subsidiaries within the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement twelve (12) month period preceding termination of the covenants contained Secondment and with whom the Executive, during such period, had supervisory responsibility or work-related contact, or about whom the Executive acquired Confidential Information relating to compensation, benefits, performance evaluations or services (in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scopeeach case, duration, geographical area and in all other respects. If excluding any such covenant is found to be invalid, void persons whose relationship with TechTarget or unenforceable in any situation in any jurisdiction its subsidiaries was terminated by a final determination TechTarget or its subsidiaries without cause). For purposes of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree the term “Restricted Business Partner” means each and every customer, vendor, supplier, consultant and independent contractor with whom or with which TechTarget or any of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches its affiliates or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
subsidiaries has conducted business within the twelve (e12) For the avoidance of doubt, none month period preceding termination of the restrictions imposed Secondment and with whom the Executive, during such twelve (12) month period, had business-related contact or about which the Executive acquired Confidential Information by applicable subsections virtue of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such partythe Secondment.
Appears in 1 contract
Non-Solicitation. (a) During the one-year period beginning on the Closing Date and ending on the 18-month anniversary of following the Closing Date, and except as otherwise required or permitted by neither Seller nor any Ancillary Agreement, Seller and of its Affiliates (collectively, the “Restricted Entities”) shall notshall, directly or indirectly:
, for itself or any other person (i) Induce, solicit or encourage, induce or attempt to induce, solicit or encourage, induce any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as individual set forth on Section 4.23 of the Closing Date Seller Disclosure Letter to leave his or her employment with Buyer or its Affiliates (including the “Restricted Services”) Company), or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicitsolicit for employment, hire employ, or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including otherwise engage as an employee, independent contractor contractor, or consultant) with a Restricted Entityotherwise, any individual set forth on Section 4.23 of the Seller Disclosure Letter; provided, however, provided that the foregoing restrictions in clauses (i) and (ii) shall not apply to any (1) individual whose employment general solicitation directed at the public in general or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result directed toward employees of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller Buyer or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor the Company) (including by a recruiter or consultantsearch firm) if no Restricted Entity had previously attempted or to solicit or hire any hiring that results from such individualsolicitation.
(b) Purchaser agrees that from During the date hereof until the 18one-month anniversary of year period following the Closing Date it shall notDate, and shall cause neither Buyer nor any of its Affiliates (including the Companies and the Transferred SubsidiariesCompany) not toshall, directly or indirectly, solicit, hire for itself or any other person (i) induce or attempt to solicit or hire induce any employee of Seller or any of its Affiliates who is not a Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply to any (i) individual whose employment or service was unless terminated by Seller or its Affiliates) former employee of Seller or its Affiliates who came in contact with or first became known to Buyer and its Affiliates in connection with its consideration of the Transactions, to leave his or her employment with Seller or its Affiliates, or (ii) publishing solicit for employment, employ, or posting otherwise engage as an employee, independent contractor, or otherwise, any employee of open positions Seller or its Affiliates or (unless terminated by Seller or its Affiliates) former employee of Seller or its Affiliates who came in contact with or first became known to Buyer and its Affiliates in connection with its consideration of the course of normal hiring practices which are Transactions; provided that the restrictions in clauses (i) and (ii) shall not apply to any general solicitation directed at the public in general or not specifically sent to, or do not specifically target, directed toward employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies and the Transferred Subsidiariesby a recruiter or search firm) or to specifically solicit any hiring that results from such individuals or hiring as a result of such solicitationssolicitation.
(c) The parties acknowledge Each Party agrees that the covenants set forth in this Section 7.7 4.23 are an essential element reasonable with respect to its duration and scope. In the event of this Agreement and that, but for the agreement breach by either Party or any of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement its Affiliates of the covenants contained set forth in this Section 7.74.23, as determined by agreement among the Parties hereto or by arbitrators or by a court of competent jurisdiction, the term of such covenant shall be extended by the period of the duration of such breach. The parties have independently consulted with their respective counsel and after such consultation agree Parties intend that the covenants set forth in this Section 7.7 4.23 shall be enforced to the fullest extent permissible under the Laws of any applicable jurisdiction, and acknowledge that these covenants are reasonable required and proper appropriate in scope, duration, geographical area scope and in all other respectsduration for the adequate protection of the businesses of each Party and its Affiliates and to induce the Parties to enter into this Agreement and to consummate the Transactions. If any such covenant is found to provision of this Section 4.23 shall be invalidillegal, void invalid or unenforceable in any situation jurisdiction in which enforcement is sought, then in such jurisdiction only, such provision shall be ineffective to the extent of such illegality, invalidity or unenforceability, without affecting in any way the remaining provisions of this Section 4.23, and without rendering such provision illegal, invalid or unenforceable in any other jurisdiction. If, however, any provision of this Section 4.23 shall be illegal, invalid or unenforceable in any jurisdiction in which enforcement is sought because the scope of such provision is excessive or more restrictive than permitted by a final determination the Law of a court or any other Governmental Authority of competent such jurisdiction, Seller then in such jurisdiction only, the scope of such provision shall be limited to the minimum extent necessary (and Purchaser agree that: (i) without limiting the scope of such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2jurisdiction) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 such provision valid, legal and enforceable to the fullest greatest extent permitted by applicable Law; and (iii) under the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate Law of such partyjurisdiction.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Cornerstone Building Brands, Inc.)
Non-Solicitation. (a) During the For a period beginning on the Closing Date and ending on until the 18-month anniversary of date that is twelve (12) months after the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, and shall not permit any of its subsidiaries, affiliates or Representatives to, directly or indirectly:
(i) Induce, solicit (or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1assist third parties in soliciting) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Transferred Employee for or knowingly encourage any such solicitation, or encourage any Transferred Employee to terminate his or her employment with Buyer or in any other capacity (including as an independent contractor or consultant) with a Restricted Entityits affiliates; provided, however, that the foregoing nothing in this Section 5.12(a) shall prohibit Seller or any of its affiliates from a general solicitation that is not apply directed specifically to any (1) individual such employees or soliciting any person whose employment or service was has been terminated by the Companies or the Transferred Subsidiaries, Buyer at least six (26) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of months prior to such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individualsolicitation.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of For a period beginning on the Closing Date it until the date that is twelve (12) months after the Closing Date, Buyer shall not, and shall cause not permit any of its Affiliates (including the Companies and the Transferred Subsidiaries) not subsidiaries, affiliates or Representatives to, directly or indirectly, solicit, hire solicit (or attempt to solicit assist third parties in soliciting) or hire any person who was an employee of Seller or any as of its Affiliates the Closing Date who is was not a Continuing Business Employee for employment or in any other capacity (including and continued as an independent contractor employee of Seller after the Closing Date (a “Seller Employee”) or consultant)knowingly encourage any such solicitation, or encourage any Seller Employee to terminate his or her employment with Seller or its affiliates; provided, however, that the foregoing nothing in this Section 5.12(b) shall not apply to prohibit Buyer or any of its affiliates from (i) individual a general solicitation that is not directed specifically to any such employees or soliciting any person whose employment or service was has been terminated by Seller at least six (6) months prior to such solicitation; or its Affiliates, (ii) publishing directly or posting of open positions indirectly, soliciting (or assisting third parties in the course of normal soliciting) or hiring practices which are not specifically sent to, or do not specifically target, employees any former employee of Seller or its Affiliates or hiring as a result who is an Overhead and Shared Services Employee and, if an individual was employed in connection with the provision of services under the Transition Services Agreement, the terms of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including services under the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitationsTransition Services Agreement has expired.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Alarm.com Holdings, Inc.)
Non-Solicitation. To the extent permitted under applicable Law, for a period of [***] (a[***]) During the period beginning on the Closing Date and ending on the 18-month anniversary of months following the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectively, the “Restricted Entities”) shall not, directly or indirectly:
(i) Inducewithout the prior written consent of Purchaser, neither Seller nor any of its Affiliates shall directly or indirectly knowingly employ or solicit any Transferred Employee or encourageany other individual who was, or attempt immediately prior to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date Date, an In-Scope Employee (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted any individual who ceases to be employed by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) SolicitPurchaser Employer due to an involuntary termination or redundancy), hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) unless such individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it shall not, and shall cause its Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, solicit, hire or attempt to solicit or hire any employee of contacts Seller or any of its Affiliates independently and on his or her own initiative in response to a general recruitment advertisement issued by Seller or any of its Affiliates, and (ii) without the prior written consent of Seller, neither Purchaser nor any of its Affiliates shall directly or indirectly knowingly employ or solicit (A) any non-In-Scope Employee employed by Seller or an Affiliate of Seller following the Closing Date who is not a Continuing Employee for employment providing services related to the Acquired Assets or the transition of the Acquired Assets or (B) any individual set forth on Schedule 9.04 (other than, in each case, any other capacity (including as an independent contractor or consultant); provided, however, that the foregoing shall not apply individual who ceases to any (i) individual whose employment or service was terminated be employed by Seller or its Affiliates, (ii) publishing Affiliate due to an involuntary termination or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, employees of Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by redundancy). If Purchaser or its Affiliates employs any individual listed on Schedule 9.04-2, who terminates employment with Seller and its Affiliates, during the [***] (including [***]) month period following the Companies and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result Closing Date, Purchaser shall immediately notify Seller of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are employment and shall pay to Seller an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense amount equal to the enforcement severance payments and benefits (plus the employer portion of the covenants contained in this Section 7.7. The parties have independently consulted payroll taxes with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void respect thereto) paid or unenforceable in any situation in any jurisdiction provided by a final determination of a court Seller or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modified.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if in connection with such Person ceases to be an Affiliate of such partyindividual’s termination.
Appears in 1 contract
Non-Solicitation. (a) During the period beginning on from the Closing Date date hereof and ending on the 18-month second anniversary of the Closing Date, and except as otherwise required or permitted by any Ancillary Agreement, Seller and its Affiliates (collectivelythereof, the “Restricted Entities”) shall not, directly or indirectly:
(i) Induce, solicit or encourage, or attempt to induce, solicit or encourage, any Restricted Customer to (1) use a Restricted Entity to provide any services which are offered by the Companies and the Transferred Subsidiaries as of the Closing Date (the “Restricted Services”) or (2) reduce, terminate or adversely modify the employment of the Companies or the Transferred Subsidiaries for such services, in each case other than as a consequence of a general solicitation conducted by a Restricted Entity not specifically directed at Restricted Customers; or
(ii) Solicit, hire or attempt to solicit or hire any Continuing Employee for employment or in any other capacity (including as an independent contractor or consultant) with a Restricted Entity; provided, however, that the foregoing shall not apply to any (1) individual whose employment or service was terminated by the Companies or the Transferred Subsidiaries, (2) publishing or posting of open positions in the course of normal hiring practices which are not specifically sent to, or do not specifically target, Continuing Employees or hiring as a result of such posting, (3) solicitations made by third-party search firms that have not been directed by Seller or its Affiliates to specifically solicit such individuals or hiring as a result of such solicitations, or (4) individual who approaches a Restricted Entity seeking to be hired as an employee or in another capacity (including as an independent contractor or consultant) if no Restricted Entity had previously attempted to solicit or hire such individual.
(b) Purchaser agrees that from the date hereof until the 18-month anniversary of the Closing Date it Entities shall not, and shall cause its their Affiliates (including the Companies and the Transferred Subsidiaries) not to, directly or indirectly, on their own behalf or on behalf of any other person in any manner whatsoever: (i) without the prior written consent of the Seller, induce, request, solicit, hire encourage or assist, or attempt to solicit or hire any employee of Seller or do any of the foregoing, any Covered Seller Person to terminate his, her or its Affiliates who is not employment or association with a Continuing Employee for employment Seller Entity or in any other capacity (including as an independent contractor or consultant); manner interfere with the relationship of a Seller Entity with such Covered Seller Person, provided, however, that the foregoing provisions of this paragraph shall not apply to any (i) individual whose restrict the Purchaser Entities from hiring, soliciting for employment or service consulting with (x) a Covered Seller Person if such Covered Seller Person's employment was terminated by the Seller Entity that employs such Covered Seller Person or its Affiliatessuch Covered Seller Person had ceased to be employed or retained by a Seller Entity for at least twelve months prior to the date of being solicited for hiring by a Purchaser Entity, or (y) a Covered Seller Person who responded to a general solicitation (such as for employment or a request for proposals) in newspaper advertisements or other periodicals of general circulation not specifically targeted to Covered Seller Persons; or (ii) publishing intentionally induce or posting assist others to induce any supplier of open positions in goods or services to any Seller Entity, whether existing on the course of normal hiring practices which are not specifically sent todate hereof or hereafter arising, to terminate its relationship with such Seller Entity or do not specifically targetanything, employees of directly or indirectly, to adversely interfere with the business relationship between a Seller or its Affiliates or hiring as a result of such posting, or (iii) solicitations made by third-party search firms that have not been directed by Purchaser or its Affiliates (including the Companies Entity and the Transferred Subsidiaries) to specifically solicit such individuals or hiring as a result of such solicitations.
(c) The parties acknowledge that the covenants set forth in this Section 7.7 are an essential element of this Agreement and that, but for the agreement of each party to comply with these covenants, the other party would not have entered into this Agreement. The parties acknowledge that this Section 7.7 constitutes an independent covenant that shall not be affected by performance or nonperformance of any other provision of this Agreement. The existence of any claim or cause of action against one party by the other party, whether predicated on the breach of this Agreement or otherwise, shall not constitute a defense to the enforcement of the covenants contained in this Section 7.7. The parties have independently consulted with their respective counsel and after such consultation agree that the covenants set forth in this Section 7.7 are reasonable and proper in scope, duration, geographical area and in all other respects. If any such covenant is found to be invalid, void or unenforceable in any situation in any jurisdiction by a final determination of a court or any other Governmental Authority of competent jurisdiction, Seller and Purchaser agree that: (i) such determination shall not affect the validity or enforceability of (1) the offending term or provision in any other situation or in any other jurisdiction or (2) the remaining terms and provisions of this Section 7.7 in any situation in any jurisdiction; (ii) the offending term or provision shall be reformed rather than voided and the court or Governmental Authority making such determination shall have the power to reduce the scope, duration or geographical area of any invalid or unenforceable term or provision, to delete specific words or phrases, or to replace any invalid or enforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, in order to render the restrictive covenants set forth in this Section 7.7 enforceable to the fullest extent permitted by applicable Law; and (iii) the restrictive covenants set forth in this Section 7.7 shall be enforceable as so modifiedperson.
(d) The parties hereby acknowledge and agree that irreparable damage would occur if this Section 7.7 were not performed in accordance with its specific terms and that any breach of this Section 7.7 by the other party could not be adequately compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or remedy to which such party may be entitled, at law or in equity or under this Agreement, such party shall be entitled to enforce this Section 7.7 by a decree of specific performance and to temporary, preliminary and permanent injunctive relief to prevent breaches or threatened breaches of this Section 7.7, without posting any bond or other undertaking.
(e) For the avoidance of doubt, none of the restrictions imposed by applicable subsections of this Section 7.7 shall apply to any Person that is an Affiliate of a party to this Agreement if such Person ceases to be an Affiliate of such party.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Jetblue Airways Corp)